May 24, 2012
Perpectives on Risk
Today's post is a short one, as I am in transit to my new home at Wake Forest. But this recent post by David Vogel on RegBlog offers interesting food for thought. His new book, the Politics of Precaution, considered why precautionary approaches to regulation have shifted: while the US used to take this approach, today the EU is the leader in precautionary regulation. I wonder whether he addresses the argument that precaution depends on one's perspective. That is, addressing one type of risk often moves other types of risks to the forefront. One thing is for certain: I'm putting the book on my summer reading list.
- Emily Meazell
May 23, 2012
U.N. Academic Impact Initiative
Last week I had the pleasure of speaking at the United Nations as a participant in the UN Academic Impact Initiative event entitled, “Sustainability in Developing Nations: Opportunities for Public/Private Partnerships.” It was quite an honor to be involved in such an engaging project. The event illustrated the goals of Academic Impact “to harness that great power to build a better world; a world where human ingenuity will make our homes, communities and consumption patterns socially and environmentally sustainable; a world where research receives the funding and support it needs to defeat disease, deprivation and despair; a world where the ‘unlearning’ of intolerance will bridge barriers that still divide nations and peoples.”
This fantastic event was held at the Daj Hammarskoldj Library Auditorium at the United Nations in New York City and can be viewed here. Professor John Dernbach from Widener Law discussed the accomplishments and challenges for sustainability from his forthcoming book, “Acting as If Tomorrow Matters.” Elizabeth Thompson, Executive Coordinator for the Rio + 20 Conference discussed Post-Rio sustainability frameworks. Professor John Nolon from Pace Law School delivered a presentation on gaps in climate change law and sustainable development law. I discussed water infrastructure planning and ecosystem services. Professor James Gathii from Albany Law School presented on the dangers of export-driven trade policies in economies dependent on agricultural exports. Professor Alexandra Harrington from Albany Law School discussed constitutional frameworks for sustainable decision making. A panel then discussed the role and potential of public-private partnerships in achieving sustainable development. Presenters on this panel included: Scott Fein of Whiteman Osterman and Hanna; the Honorable Abulkalam Abdul Momen, Ambassador from Bangladesh to the United Nations; and Kenneth Bond of Squire Sanders (US), LLP.
Other prominent participants included: Ramu Damodaran, United Nations Office of Academic Impact; Connie Mayer, Interim President and Dean at Albany Law School; and Patricia Salkin, Associate Dean and Director of the Government Law Center at Albany Law School.
- Keith Hirokawa
Desperate Alewives and Cod without Rivers
In the often-sad history of fisheries management, few tragedies are more prominent than the decline of the North Atlantic cod. Cod once were phenomenally abundant—so much so that many believed their populations were inexhaustible—but collapsing populations in both Canadian and American waters proved that conventional wisdom wrong. For the fishing communities of New England and the maritime provinces, the consequences were devastating. The aftershocks continue to the present day. Rebuilding cod and other groundfish populations remains a struggle, and battles over fishing restrictions still rage.
Recently, a team of researchers at Bowdoin and Bates Colleges and the University of Southern Maine began exploring a new angle on fisheries restoration. Traditional fisheries regulation in New England, as in most U.S. waters, has focused primarily on regulating the number of fish caught. Habitat protection is less frequently the focus, particularly if the habitat is somewhere other than the fishing grounds at issue. But this research team’s working hypothesis is that a key step toward bringing back New England’s marine fisheries may be restoration of the region’s freshwater rivers.
At first blush, that statement may seem odd, for cod and other groundfish live their entire life cycles in the ocean. Some of their prey, however, are another story. New England’s lake and river systems once poured literally millions of diadromous fish into nearshore waters, and those fish—salmon,eels, shad, and, most abundantly, river herring—formed part of the base of the marine food chain. But beginning in the nineteenth century, a combination of logging drives, pollutant discharges, and dams decimated those populations, transforming not just freshwater ecology but also the adjacent oceans. That loss of food may have been an important contributor to the groundfisheries' near-demise.
The logging drives have ended, and, thanks to the Clean Water Act, water quality, though still problematic in places, is vastly improved. Hundreds of dams remain, and they create significant impediments to the recovery of diadromous fish populations, but that, too, is starting to change. In the 1990s, the Federal Energy Regulatory Commission ordered the removal of the Edwards Dam on the Kennebec River (pictured at left; photos from americanrivers.org). Several other dam removals have followed, with the Penobscot River Restoration Project—perhaps the most ambitious dam removal project in the country—beginning to remove structures this year. At a minimum, these projects create great opportunities for studying the ecology, economics, and politics of dam removal, and the Bowdoin-Bates-USM research team is already working to take advantages of those opportunities. Perhaps, also, those dam removals will be a step toward the restoration of an iconic fishery.
For more on the rivers, fish, and research, check out this (Emmy-nominated) documentary.
May 22, 2012
Environmental Legal Education in Spain
I find it interesting to consider differences among countries in the extent to which environmental law has developed into a distinct and significant field of legal study. In the US, the field is pretty strong. I think that most law schools offer environmental law courses and have at least one permanent faculty member who self-identifies with the field, and many have centers, journals and clinics dedicated to environmental law. In Latin America, where I have spent considerable time, environmental law was just beginning to come into its own as a field of study in the early 2000s. Several Latin American countries – particularly Brazil and Costa Rica, which I know best – now have quite a few strong environmental law programs.
With the rapid development of environmental law in Europe in the last 25 years, one might think that most law schools in Europe would have environmental law programs. But I haven’t found this in Spain. I was privileged to have the chance to visit the only law school in Spain that has a true center dedicated to environmental law, the Tarragona Center for Environmental Law Studies (CEDAT, Centre de Estudis de Dret Ambiental de Tarragona) at the Universitat Rovira i Virgili, about an hour south of Barcelona. I gave a talk at CEDAT’s conference on climate change regulation and electric vehicle policies, as did Steve Weissman from UC Berkeley.
CEDAT is impressive, with about 25 affiliated law faculty (along with others from disciplines such as chemistry, economics, and geography); an internationally-recognized Masters in Environmental Law; an environmental law journal (Revista Catalana de Dret Ambiental); and an environmental law clinic. The relatively new university (established in 1992) was motivated to develop a specialization in environmental law to create a niche for its law school and build town/gown relationships. Tarragona is a place with a relatively troubled environment, with extensive port development, a large petrochemical industrial zone, several waste facilities, and the proximity of three nuclear reactors.
Many older law schools in Spain have not yet come to view environmental law as an important legal field. The study of EU environmental law has gained a foothold in the traditional field of public international law, but other areas of domestic and international environmental, climate, and energy law seem to get little attention. I think (and hope!) that this could be a big growth area in Spanish legal education in the next decade, and CEDAT provides a great model.
- Lesley McAllister
May 21, 2012
Test Questions I Wish I’d Asked
The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.
This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). Thanks to the bloggers at CPRBlog, who helped me come up with some of the ideas.
Now find a quiet spot, sharpen that No. 2 pencil, and test your knowledge.
1. Last year, when the EPA began limiting emissions of CO2 from coal-burning power plants and other sources, the energy industry blew a fuse. Affected companies publicly argued that greenhouse gas regulation had gone too far. But last February during oral argument before the U.S. Court of Appeals, lawyers for some of those same companies argued that the agency’s rule was invalid because it did not go far enough. According to them, what was wrong with the rule?
(A) The rule did not limit methane emissions from municipal landfills, methane being a more powerful greenhouse gas than CO2.
(B) The rule did not limit CO2 emissions from smaller facilities like hospitals, schools, and churches.
(C) The rule did not include adequate criminal penalties for “knowing violations.”
(D) The rule did not directly address facilities that consume large amounts of electricity, like the proposed car elevator for Mitt Romney’s new beach-house or Al Gore’s Belle Meade mansion in Nashville.
2. As of this month, a preliminary EPA document containing a statutorily mandated list has been trapped in a routine process of White House regulatory review for two years. Many environmentalists want the Obama administration to act on this list and are incensed by the delay. What’s on the list?
(A) The names of chemical agents used in hydraulic fracturing, which some experts believe could contaminate nearby aquifers.
(B) The names of polluted communities that the EPA believes are in need of “environmental justice support.”
(C) The names of Republican Senators who have publicly said they believe in human-induced climate change. (It’s a short list.)
(D) The names of certain “chemicals of concern,” like the BPA used in baby bottles and dental fillings, that the EPA believes might deserve future regulatory attention.
3. A 2011 report by the U.S. Nuclear Regulatory Commission that this year became the subject of Senate hearings, found that the Fukushima Daiichi nuclear disaster in Japan was partially attributable to a flawed planning process. What was the flaw?
(A) The hypothetical “worst case” tsunami that planners had in mind was based on overly optimistic assumptions and was not based on the full historic record.
(B) The planning process discouraged planners from giving weight to variables that were not contained within the worst-case model they were considering.
(C) The planning process was difficult to apply consistently across facility locations because of differences in geography and other site-based characteristics.
(D) All of the above.
4. This spring on the campaign trail, Mitt Romney has offered the misfortunes of the Sackett family as an example of how an “Obama government interferes with personal freedom.” According to Romney, Mike and Chantell Sackett bought some Idaho property with plans to build a home, only to be blocked by an EPA official who insisted the property contained protected wetlands even though the designation did not appear in the wetlands registry. The Sacketts were given no chance to appeal and were forced to comply or “risk millions in fines.” The story sounds compelling, except for one unmentioned detail:
(A) Ten months out of the year, the Sacketts’ land is two-feet underwater.
(B) EPA officials had offered Mike and Chantell a “beer summit” at the White House—featuring Laughing Dog ale—as compensation.
(C) The Sacketts’ run-in with the EPA occurred during the Bush administration.
(D) All of the above.
5. Last month the U.S. Department of Justice announced the first criminal charges related to the BP Blowout. Kurt Mix, a BP engineer involved in designing the failed “top kill” remedy, was indicted for obstructing justice by allegedly destroying hundreds of text messages that described high volumes of oil escaping from the ruptured well. That’s bad enough. But as an eagle-eyed reporter at the New York Times observed, at the time of the arrest, Mix was guilty of a nearly equally grave sartorial infraction? What was it?
(A) He sported a pair of “Van’s two-toned skate shoes with white athletic socks.”
(B) He wore “a plaid, clip-on tie.”
(C) He wore “a pair of khakis without a belt.”
(D) His purple polo shirt appeared to be stained by “two splashes of Tabasco sauce.”
Have a great summer!
Answers: 1:B, 2:D, 3:D, 4:C, 5:C
Emerging Issues in the Arctic, Part III: Competing Visions of Deference
Last week, the Ninth Circuit Court of Appeals heard oral argument in Native Village of Point Hope v. Salazar. The lawsuit, brought by an Inupiat village and a “who’s who” of environmental groups, challenges the Bureau of Ocean Energy Management’s approval of Shell Oil’s plans to drill exploratory wells in the Beaufort and Chukchi Seas this summer. In particular, the lawsuit claims that BOEM acted arbitrarily and capriciously when it accepted Shell’s oil spill response plan and determined, as required under the Outer Continental Shelf Lands Act, that the exploration plan would probably not cause any significant harm.
The issues in the case get pretty technical pretty quick, but basically amount to these: 1) What kind and degree of worst case discharge analyses are required of BOEM and industry during the exploratory drilling phase in a post-Macondo world? 2) Will the well capping that worked in the Gulf of Mexico work in Arctic conditions? Shell used to say no. Now, it says yes. Should BOEM take the company’s word for it? If so, how much explanation does BOEM need to give?
I have been combing through the dockets from the various lawsuits surrounding Shell’s present and past proposals to drill in the Beaufort and Chukchi Seas in search of the competing visions of the Arctic at stake. I have assumed that this battle between Big Green and Big Oil over the future of the Arctic would involve both narrative nuance and high stakes rhetoric, in addition to the requisite reams of technical detail and bureaucratic process-speak. After all, the Sierra Club and World Wildlife Fund have mounted a campaign called “Save the Polar Bear Seas.” Earthjustice’s “Visions of the Arctic” campaign has an action alert asking supporters to write President Obama to “Protect the Fragile Arctic Ocean.” NRDC enlisted Robert Redford for a video titled “Keep Shell Out of the Arctic.” The Center for Biological Diversity has issued a fact sheet arguing that the “national treasure” of “the Arctic’s remote and undeveloped seas” should be “off limits to oil drilling.” Greenpeace’s protest efforts have already included Lucy Lawless getting arrested for boarding an oil drilling ship in New Zealand and the organization’s being sued by Shell to keep protest boats away from drilling sites. So it’s not like emotions are being held in check.
Of course, litigation rarely sounds as extreme (or as lively) as political campaigns or fundraising appeals or Greenpeace protests. So I was not surprised when Holly Harris, an attorney at Earthjustice, announced to the Ninth Circuit panel that although the issues in the case “strike at the heart of an oil company’s ability to stop and control an oil spill on the outer continental shelf, the court’s resolution of these issues will be founded…in nothing more than the hallmark principles of administrative law.” This, after all, is precisely what we, as law folk, want most to believe. Accordingly, although the Native Village of Point Hope case is, from the perspective of the plaintiffs’ members, about Arctic sea ice crashing into heavy equipment in violent winds and choppy waters and the threats this possibility poses to indigenous communities of the Far North, the whales and caribou they depend on, and those amazing polar bears, the case the lawyers and judges analyzed at oral argument was about the proper degree of deference the court should grant to the expert agency.
Shell’s and BOEM’s argument is that under the Ninth Circuit opinion in Lands Council v. McNair a court’s deference to an administrative agency is at its zenith when dealing with an issue that falls within the scientific or technical expertise of the agency, and even more so when the issue is at the frontier of science and technology. Here, both argued that McNair deference should apply to BOEM’s determination that Shell’s plan to use well capping to contain a blowout is an adequate part of the overall oil spill response plan. However, the case is not really about BOEM’s expertise, because BOEM is not the real expert. As noted above, Shell originally believed well capping would not work in Arctic conditions, and only recently changed its mind. BOEM accepted the company’s change of heart, but apparently without any explanation as to why. According to Ms. Harris of Earthjustice, this lack of explanation is fatal. According to Shell’s lawyers, it is irrelevant: BOEM has no responsibility to reconcile the inconsistency in Shell’s position because agencies are allowed to change their minds.
This is a gross oversimplification of the skilled argument before the Ninth Circuit, but here, it seems to me, is the basic problem with the Shell’s argument: The agency didn’t change its mind, Shell did, and BOEM accepted it without much explanation. So, if the court defers to BOEM, and BOEM defers to Shell, isn’t the court really deferring to Shell? This, obviously, is not a unique occurrence. Industry frequently possesses a greater degree of technical expertise—and the resources necessary to develop the expertise—than administrative agencies. But this expertise is not neutral; it is deeply informed by companies’ corporate interests. Do we want courts to defer to industry (rather than agencies) in frontier areas of science and technology? Do we want courts to defer to Shell (rather than BOEM) in this frontier area of the planet? Isn’t that kind of deference a violation of the hallmark principles of administrative law?
The well capping controversy may prove to be an illusory concern, as Shell has several other options for oil spill response and containment. These other options may be challenged a little later, when the Bureau of Safety and Environmental Enforcement issues a drill permit that officially approves the oil spill response plan. So, more to come on that front. Meanwhile, there are several other lawsuits underway, challenging the environmental review underlying the lease sale in the Chukchi Sea and the air permits issued by EPA for the drilling operations. Whether the lawyers admit it in court, the battle for the Arctic is most definitely on.
- Michael Burger
May 20, 2012
In Case You Missed It: The Week of May 13-19
The Senate’s Energy and Natural Resources Committee took up a “clean energy” bill proposed by the Committee’s Chairman, Jeff Bingaman (D-N.M.), that would require utilities to derive a defined portion of their electricity from technologies that emit fewer greenhouse emissions than coal.
Hawaii became the first state to ban plastic bags at the point of sale after Honolulu County joined the state’s other three counties in enacting a plastic bag ordinance.
Vermont became the first state to ban hydraulic fracturing for natural gas.
NOAA reported to Congress that a record six populations of fish returned to healthy levels in 2011.
The Obama administration appealed a federal district court ruling that the EPA illegally vetoed a major mountaintop removal coal mining project in West Virginia.