Friday, May 18, 2012
There could be a worse fate than having an environmental law professor as a parent, but one byproduct of that relationship is this: You might spend your first birthday at a copper mine. That, at least, is what my daughter learned today. I am hoping, when she is 38, she'll forgive me. I'm just not counting on it.
We live a fifteen-minute drive from the highest yielding copper mine in the history of the world. And I had never been there, until today. When my sons arrived home from school, the first words out of their mouths were that they needed to go with their friends on a neighborhood field trip to the mine, and that I needed to give them a ride (I am still not convinced they didn't invite themselves on the trip, but my good friend and neighbor, Megan, insists that this point of procedure is immaterial, so I am taking her at her word).
It was on this occasion that we thus shortly found ourselves winding my Smurf-blue Prius up the roads to the Rio Tinto Kennecott Utah Bingham Canyon Mine. If you've never been, it's a trip worth taking. The sheer size of the mine is staggering. My sons got very nervous when I told them that from the entry booth, we were going to have to walk up the overburden piles to get to see the mine. To give you a better sense of the mine's immensity, here are a few interesting facts, according to Rio Tinto:
- The mine has produced more copper than any other -- about 19 million tons.
- It is 3/4 of a mile deep and 2 3/4 miles wide at the top.
- Two Sears Towers (aka Willis Buildings) could be stacked on top of each other inside the mine and not reach the top.
- Miners drill about 200 holes that are 75-100 feet deep per day; they pack each hole with 1,200 pounds of blasting agents.
- The mine uses about 80 "gigantic" haul trucks. Each truck costs about $3.5 million.
- Stretching out all the roads that wind around the mine would create about 500 miles of roadway -- more than enough to reach Denver from Salt Lake City.
- The mine is one of the few humanmade objects visible from space.
Visiting the mine was a fascinating experience. I learned a lot I never knew about the copper production process: from mining and concentrating to smelting and refining. I realized that far more products than I imagined use copper in them. And I finally saw, up close and personal, a landmark that gets a lot of play in the local environmental community.
To some degree, this trip was ironic for me. I was born and raised in Utah but had never been to the mine. I've lived a short distance from it for over a year and still hadn't made the trek. My grandfather used to work at the mine, and I never went with him. Perhaps most of all, I spent the entire morning editing an article and thus thinking heavily and deeply about our interactions with the environment -- something I, and I assume, most other environmental law professors, do on a regular basis -- and yet I had never made the effort to explore this corner of my own home environment.
There is utility in making such trips. As educators, I am convinced we have a duty to teach at all times, and that is part of why I was so willing to drop everything and take my kids up Bingham Canyon. Even more than that, though, environmentalists -- and I count myself as one -- sometimes can get myopic about issues. That's particularly easy when we divorce ourselves from the land, from the industry, from the systems (natural and otherwise) that surround us. It's easy indeed when we spend most of the times sitting in our offices, reading fascinating texts, and writing on flat-screen computers. So, as the seasons change and summer arrives, I'm committing myself to doing it more often: getting out and being in, not just writing about, the environment that sustains us all and that we need to, we must, care so deeply about.
It's good to bump into the environment more often, especially in our own backyards.
I'm already planning on visiting the Bingham Canyon Mine again. I might take my daughter too, even if it's not her birthday.
Thursday, May 17, 2012
On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA. This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come. It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.” Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.
The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.” Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges. The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law). The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.
Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at Shelley.Saxer@pepperdine.edu by June 15, 2012. Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers. Submitting authors will be notified of the results of the selection process by July 1, 2012. To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012. The selected authors will be responsible for paying their annual meeting registration fee and travel expenses. Questions should be directed to Professor Saxer at the above-noted email address.
Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.
Wednesday, May 16, 2012
At the AALS midyear meeting, as part of the Workshop on Torts, Environment, and Disaster, Daniel A. Farber, Bruce R. Huber, John Copeland Nagle, Jessica Owley, Melissa Powers, Kalyani Robbins, and I will be co-presenting and co-moderating a session on "Generations of Environmental Law." This session evolved out of a discussion on the environmental law professors listserve about relationships among junior and senior scholars, with a particular focus on opportunities for mentoring. To help focus that discussion, we have prepared a brief survey for environmental law professors on their mentoring experiences. We've kept it very short (only 9 questions, which you can choose to answer by ticking off boxes in a minute or two, with room for your comments if you have time to provide more detail). We will share the results at the conference and with the environmental law community via the listserv and this and other blogs.
Thanks in advance for your participation in our community’s efforts to improve connections among colleagues. We greatly appreciate it. If you have any trouble clicking on the above survey link, you can also cut and paste http://www.surveymonkey.com/s/BXZBY8D into your internet browser.
Tuesday, May 15, 2012
All has been quiet on the federal climate legislation front for a while now. As I begin to review some trade implications of climate change, I am encountering articles that discuss the "carbon leakage" problem and their treatment under the proposed climate laws. If American firms are subject to climate regulation, while other countries do not have similar law, the former cannot compete with the latter in the market. American competitiveness will therefore be undermined. Almost all climate Bills acknowledge that to combat competition loss, several energy and emissions-intense manufacturing units may move abroad. Senators recognize that neutralizing the negative impact on competitiveness is crucial for gaining support for their proposed laws. So, these Bills incorporate cost diffusion measures, including trade measures such as imposition of higher tarriffs on goods manufactured in an energy-intensive manner. Of course, this raises a host of concerns, not least among them, administrative burdens, potentially regulating countries such as China that are excluded under the Kyoto Protocol, and compatability with international trade law, particularly WTO law.
So, how do we resovle this legal tension? Some law review articles make significant suggestions for achieving WTO compatability, but the magic bullet remains evasive. What we may need to do at this point is perhaps turn to companies that could potentially move and ask them to reach down to their ethical side, as well as think through the issue from a long-term perspective. The ethical aspect requires corporations to engage in problem solving. Many corporations by now acknowledge that climate change is a grave common concern. As a step further, they should consider working with the government to minimize the economic impact through a series of internal measures, as opposed to shifting production to countries without adequate emissions control. Of course, such voluntarism and self-restraint is easier to ask for than to grant. But, then it may be easier to arrive at the decision if a business considered the long-term impacts.
While no one can predict with absolute accuracy the exact time and form that climate change will take, it is fairly well-established that impacts will include disruption of infrastructure and other structures that support the economy. As several economists have pointed out, such disruption can result in high costs not only to individuals and states, but also to businesses. For those businesses that may decide to move out, their decision would not only mean that they may contribute to negative impacts to the economy. It also means that they may find themselves in locations and situations of vulnerability. Since most countries without emissions control and competitive conditions are likely to be located in located countries, and since many of these countries are vulnerable to climate change, it is likely that companies setting up shop abroad will expose themselves to higher risk. In the long run, the manisfestation of such risk could result in complete loss of ability to compete.
Further, if historical evidence is any indication, companies and their products could be rejected under certain conditions, particularly where the reach of law is limited. This may increase competitive risk of a kind that cannot be easily mitigated since it could affect branding.
Finally, to address the competition problem, even if American firms stay put, we have to first consider which firms these might be, whether they do not present such competition threats at present (even absent climate law), and whether they have the technological know-how to compete with American firms. If the latter is the case, then American firms may already be at a disadvantage and it may not be affected by a climate law.
So, while the carbon leakage problem is legally vexing, a more business-like approach could alleviate some of the concern to some extent. Of course, law-makers cannot rest on such assurances unless companies take such an ethical and long-term view of the issue. That, however, is where the dialogue of carbon leakage should take place.
In this post, I take a hiatus from chronicling my adventures in China to reflect on the passing of a giant of the American legal system, a friend of the environmental movement since its early days, and a beacon for my own spirit, Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit. Judge Browning died last week at age 93, and the world is emptier in his wake. A Montana native appointed by President John F. Kennedy, he served over half a century on the Circuit (perhaps the longest serving federal appellate judge in U.S. history), including twelve years as a particularly beloved Chief Judge.
Judge Browning was small in stature and quiet in voice, and his gentle manner moved all with whom he interacted, from members of Congress to the courthouse cleaning staff. In testament to his crusade for justice and kindness through the legal system, the Courthouse where he sat in San Francisco now bears his name. What follows is taken from an essay contributed to a recent issue of the Montana Law Review celebrating his accomplishments (published a few weeks before his death), in which former clerks were asked to describe the man and his influence on their own development within the law:
I began clerking for Judge Browning just as he began his transition from active to senior status after forty years on the bench. I had just graduated from law school, which I had attended after a brief career as a forest ranger near Yosemite National Park. Judge Browning and I shared a love of wilderness and open spaces that somehow bridged his Montana upbringing with mine in New York. Today I am a law professor and at the moment, a Fulbright Scholar in China, studying environmental governance in a system so different from the one in which he first immersed me. To recount the story of his influence since then, there are too many points to begin.
I could share what I learned from him about the art (and artifice) of holding a society together by the rule of law, a lesson especially powerful now that I am living in a society that isn’t.
I could recount the memorable opinions that we worked on. There was the one preserving a modicum of tribal sovereignty despite centuries of the countervailing trend in Federal Indian Law, in which he deftly wielded precedent to both cut and shield, demonstrating the great common law tradition of pursuing justice within consistency. Or the one upholding sensible environmental regulations against an insensible but novel federalism challenge, resolving perplexing questions that kept me alone in chambers with federalism theory texts for unending days and nights (and which would later fuel my own academic research agenda). Or the case in which he found a remedy to assist the septuagenarian inmate at risk of losing nearly all his teeth to callous neglect by prison staff, even after I had resignedly concluded that there was none.
I could recall the simple delights that he took in life, like his ritual mischief of eating a single peanut before reaching the supermarket cash register across from the Pasadena courthouse. He would enjoy the peanut in the aisles but save the empty shell for the cashier, which he politely presented with an impish grin. Then he would insist on jaywalking back to court across the wide boulevard, darting through unsympathetic traffic, even into his 80s.
I could talk about the humble but practical choice to make his San Francisco office not in the hallowed Chief Judge’s central chamber, but in the corner meeting room that was smaller but had better sun (such that generations of clerks would, as I did, crawl out of a law library carrel and into the grandest office we would doubtlessly ever inhabit). I could talk about the treasures and secrets that I found improbably hidden within the very walls of that office, where previous clerks had left them over the years—small notes and totems that would momentarily suspend me in the gossamer margin of present between the ghosts of JRB brethren past and spirits yet to come. It is fitting that the building now bears his name, as well as the spirit of collegiality, wisdom, and mercy that he infused into the conduct of justice within it.
But my favorite "JRB" tale has nothing to do with the Courthouse, or a case, or even the law. It is about the wisdom he shared when he graciously agreed to officiate at my wedding the following year. We were thrilled that he was willing, as he was already the grandfather I never had as an adult, the mentor I never had in law school, and the sage we all hope for in positions of authority. My fiancé regarded him with similar awe and adoration. We could think of no one better to shepherd us into this next, most important phase in our lives.
Judge Browning agreed to marry us, but first we would meet with him to discuss the project. Not of the wedding itself, of course, but the project of our marriage. By that time, he and Mrs. Browning had been married well over half a century, and he clearly had as much wisdom on this issue as anything legal. We met at the Mill Valley Train Station Cafe and dove into the sanctity of the matter over blueberry muffins and hot drinks. He wanted to know why we had chosen to marry, and what we expected of the institution. He needed to know that we were ready, and that we would approach our commitment with the requisite spirit of joy and resolve. This was important to him. He could not preside at a wedding that skewed more toward the flowers and photographs than the sacred bond at its heart. At the end of our meeting, apparently satisfied with our discussion, he gave my husband a wink and the most practical advice of all: “My secret to fifty years of bliss? She is always right!”
There were plenty of flowers and photographs at the wedding, which took place in a Sonoma County garden over Labor Day weekend, with happy friends and relatives gathering from all corners of the country. It made no difference to Judge Browning that my husband’s two mothers had made the same level of commitment we would now undertake. It made no difference that our vows referenced a spirituality that was not his own. It made no difference to him that we had implored him to let us arrange his ride, and so he and Mrs. Browning arrived nail-bitingly late as he slowly but safely navigated to our remote garden setting. The only thing that mattered to Judge Browning was the solemnity and joy of the occasion. He presided with a grace, wisdom, and generosity that helped set transcendental foundations for the marriage he helped bring into being. Through the times of solace and difficulty since, we have always drawn on the strength and faith that he infused into our rite of passage.
In retrospect, Judge Browning’s contributions to our wedding were not that different from those he made to every case that he helped decide, every law clerk that he shepherded, every aspect of justice that he has helped to administer over the years. In each instance, he never lost sight of the ultimate object of his attention: the people before him. Whether interpreting the principles of constitutional federalism, the doctrine of qualified immunity, or the Sherman Antitrust Act, his considerations—though impeccably informed by jurisprudence—always centered on the individuals who would be impacted. The citizens participating in their own governance. The suffering elderly inmate, and his caretakers who will next time rise to the occasion. The consumers that antitrust laws are designed to protect. The bride and groom, immersed in alternating tides of hope and fear.
Judge Browning always saw the human beings at the center of the circle, and he looked them in the eye. He always wielded the judicial power as a tool for realizing justice by advancing human dignity. Because of his example, countless litigants, attorneys, court personnel, and clerks renewed their faith in the legal system, and in a civil society organized around it. I certainly did. This is, perhaps, his greatest gift.
Monday, May 14, 2012
I've written before about how (stereotypical) emblems of conservative ideals, such as the U.S. military and Field and Stream, have demonstrated that environmental protection is truly a bi-partisan issue. These demonstrations support my view that true conservatism - despite conventional wisdom to the contrary - is quite consistent with, and actually mandates, conservation. Well, add NASCAR to the growing list of examples. The May 6, 2012 print edition of the Mobile Press-Register included an article written by Doug Demmons and titled "NASCAR embraces its inner environmentalist," which highlighted the "green hue" that NASCAR has taken of late - despite the fact that only 5 years ago the organization was still using leaded fuel. Now, however, NASCAR has launched a "Green Initiative" that includes "tree-planting, solar panels, electronics recycling, and more."
The article acknowledged that NASCAR has "long been associated with a conservative political philosophy," but that the policy was successfully put into place because NASCAR emphasized three areas in particular that resonate with NASCAR fans: 1) conservation, 2) job-creation, and 3) weaning America off of Middle Eastern oil. In fact, recent polling has demonstrated that "NASCAR fans have shifted even more than the general population toward support for such programs."
NASCAR has moved away from leaded gasoline toward ethanol/conventional fuel blends and has further established a program to "offset the carbon that racecars pump into the atmosphere by planting trees at tracks and in the communities surrounding those tracks." In a somewhat funny sounding, but still awesome sentence, NASCAR has acknowledged that "the more wrecks and blown engines there are that require restarts, the more trees will be planted." NASCAR plans to double the size of the program each year until they have covered the entire racing circuit. These efforts are steps in the right direction, since according to NASCAR's estimates it only takes one racecar traveling 500 miles to put one metric ton of carbon into the atmosphere, while one tree over a 40-year period stores that much carbon. NASCAR racecars on the Sprint circuit alone burn through over 135,000 gallons of fuel in one season.
Additionally, Goodyear Tires shreds and repurposes most all of the used racecar tires, Safety-Kleen Systems reuses 180,000 gallons of spent motor oil and lubricants each year, at least one raceway (Pocono) is powered completely by solar power, one team (Roush) recycles nearly all of its wrecked cars, and one shop (that of Kyle Busch) is attempting to obtain LEED certification for its new facility in North Carolina. An all-electric Ford Focus was even the pace car that led the gas-guzzlers to the green flag at a recent race.
In the end, NASCAR's move demonstrates the power of appealing to the correct values, and how true environmentalism is about making real to everyone along the political spectrum the way in which the environment affects their daily life. Unlike so many contentious issues of our time, which involve issues of religious conviction or moral ideals, the environmental discussion largely depends upon the accurate dissemination of information. Sure, there are those who would argue that environmentalism invokes morals or religious convictions (on both sides of the debate), but ultimately when people understand the dependence of society on a clean and healthy environment, positive steps are typically taken.
In John Rawls' "veil of ignorance" he challenges us to consider what we would want society to be like if we had no way of knowing whether we'd be born rich or poor, black or white, powerful or disenfranchised. Rasband, Salzman, and Squillace frame the question a bit differently: if you had no idea when you would be born, how would you want resources to be managed today? I imagine most NASCAR drivers and fans would want us to be burning the most renewable fuels (and the cleanest), recycling racing materials, powering facilities with renewable energy, and preserving enough natural capital around the racetrack to stand in the shade on a hot summer day. Because if they don't, then in 300 years their descendents almost certainly will wonder about this strange artifact of a sport where 100,000 people gathered to watch cars drive around in circles.
- Blake Hudson