August 2, 2012
The Biggest Natural Resource Damages Case You've Never Heard of
About two weeks ago, the Department of Justice settled a major case against Sierra Pacific Industries and several other timber industry defendants. The case arose out of the Moonlight Fire, which burned through private and national forests in California’s northern Sierra Nevada in September, 2007. The aggregate amount of the settlement—a $55 million monetary payment and the transfer of 22,500 acres of land, with a total estimated value of $122.5 million—makes it the largest settlement ever in a fire damages case.
The case should be of interest to environmental lawyers for several reasons. First, the sheer scale of the damages award is striking. These aren’t Deepwater Horizon numbers, and the settlement is for much less than the Unite States initially asked (over $1 billion, according to SPI, though the government disputes that figure). But still, $122.5 million is enough to leave the timber industry rather concerned about potential future liabilities, particularly after decades of fire suppression (and a changing climate; see Blake's post last week) have primed much of the west for similarly catastrophic burns.
Second, the case involves natural resource damages in a somewhat unfamiliar context. We're used to thinking of natural resource damage claims involving contaminated site cleanups or oil spills, not forest fires, and under federal laws like CERCLA or the Oil Pollution Act. In traditional fire liability cases, plaintiffs have tended to recover for response costs and lost timber, not for environmental impacts. Here, however, the United States also sought recovery for damage to the environment, and it did so under state statutory and common law. To compare the legal and scientific complexities of a fire NRD case with the issues that often arise from Superfund sites and oil spills could be rather interesting.
Torts lawyers may also find the case intriguing, partly because cases involving stray sparks and catastrophic fires are probably near and dear to their hearts, and also because the case raises some interesting questions about the scope of landowners’ duties.
- Dave Owen
July 31, 2012
What is ACUS, you may ask...
Just how many federal administrative agencies are there? Judging from the ones that start with A, there are at least several hundred. Of course, many of these agencies face similar issues and challenges, particularly relating to administrative procedure. For this reason, various presidents since the 1950s have supported the existence of yet another federal agency with the objective of conducting studies and making recommendations for improving how agencies work. Such an agency, the Administrative Conference of the United States, or ACUS, was established on a temporary basis first, and then permanently beginning in the mid-1960s.
Since early this year, I have been a consultant to ACUS on its project regarding how federal agencies use Third-Party Inspections and Certification. ACUS also currently has projects on topics such as Cost-Benefit Analysis at Independent Agencies, Government in the Sunshine Act, and Social Media in Rulemaking. So ACUS is doing some really neat work, but you may not have heard of it. Actually, I have found in my interviews with agency officials for my project that a lot of them haven’t heard of it either. So here’s a little ACUS-education:
1. ACUS has had two lives: then and now. Although it was established as a permanent agency by the Administrative Conference Act of 1964, it was defunded in 1995. It was reauthorized in 2004 (but not funded), and then reauthorized again in 2008 and funded soon after. Its first post-reauthorization chairman, Paul Verkuil (President Emeritus of the College of William & Mary, former Dean of the Tulane and Cardozo Law Schools, former faculty member at the University of North Carolina Law School), was confirmed by the Senate in March 2010.
2. ACUS has a 10-person Council appointed by the President that decide what projects ACUS will pursue and a 101-member Assembly that adopts formal recommendations that come out of those projects. A consultant like me or an internal staffer prepares a report and suggests possible recommendations; an ACUS committee reviews the report and formulates proposed recommendations; and the Assembly meets twice a year to debate and vote on proposed recommendations.
3. Since its reestablishment, ACUS has made fourteen formal recommendations. In its first lifetime, ACUS made about two hundred. After making a recommendation, ACUS may host workshops, symposia and other events in coordination with government, academia, and industry to help agencies implement ACUS recommendations.
And just in case you want to read more about ACUS, here are two essential pieces:
Paul R. Verkuil, What the Return of the Administrative Conference of the United States Means for Administrative Law, 1 Michigan Journal of Environmental and Administrative Law 17 (2012).
Tori M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 Arizona State Law Journal 19 (1998).
- Lesley McAllister
India's Energy Future
600 million people without power, stranded transportation systems, and general chaos. This was the state of affairs in Northern India, where eight states lost power for upto 12 hours. The reason? Delhi, Punjab, and Haryana, apparently overdrew power from the grids in the Northeastern states.
The Central Electricity Regulatory Commission (CERC) has issued notices to ministers in charge in the concerned states. In the meantime, however, the reality is that millions of people and innumerable services, including performance of surgeries, were postponed. The massive power failure, dubbed as the world's largest to date, underlines India's energy problem. This year, a poor monsoon, has not only translated into soaring heat, but also increased energy use from hydropower sources that are likely facing serious strain. What is India to do?
At least one opinion suggests fracking. The nuclear energy option, of course, is under serious consideration. Of course, while these solutions may in theory address India's energy problem, the elephant room in the room--global warming--should not be ignored. If scientific predictions of a warmer planet unfold, it is not simply sufficient for India (or any other nation for that matter) to only explore energy diversification. It should synthesize energy diversification with potential climate impacts, especially the best energy source required to adapt to vagaries of the climate.
Revised Call for Papers by Pace Environmental Law Review
The Pace Environmental Law Review (PELR) will devote its winter journal to pressing issues in the development and regulation of nanotechnology and biotechnology. Jesse Glickstein and Sarah Wegmueller, the acquisition editors of PELR, would like to invite you to submit for publication an article or essay that discusses the intersection between nanotechnology and/or biotechnology and environmental issues. Based on your expertise, we encourage you to take an interdisciplinary approach to nanotechnology and/or biotechnology from legal and other perspectives, including technology, science, public health, economics, or policy. Authors should send an abstract and cover letter to email@example.com. The deadline for submissions of article proposals is September 30, 2012. Please feel free to email Jesse (firstname.lastname@example.org) and Sarah (email@example.com) with any questions.
Pepperdine University School of Law Hiring in Environmental Law
Pepperdine U. School of Law is seeking to fill one or more tenure-track positions on our faculty, as well as a position for an experienced clinician. Shelley R. Saxer (firstname.lastname@example.org) is the chair of the faculty appointments committee. The entry-level subcommittee includes Barry P. McDonald (vice-chair) (email@example.com), Robert Anderson IV, and Naomi Goodno. The lateral subcommittee includes Robert J. Pushaw (vice-chair) (firstname.lastname@example.org), Thomas J. Stipanowich, and Maureen Arellano Weston. Applicants from all subject areas are welcome. Some of the teaching subjects of special interest to us this year include Intellectual Property, Entertainment/Media Law, International Law, Environmental Law, Criminal Law, Land Finance/Real Property Law and Alternative Dispute Resolution
July 30, 2012
In Case You Missed It - Week of July 22-28
* "The U.S. is the most environmentally sustainable country in the world, except all the others."
* "The Huge Shift in Our Energy System That's Happening Right Now in 1 Chart."
* Global investment in clean energy rose 24% in the second quarter of 2012.
* Some good news on energy trends?
* At the rate population is growing it would take 6 hours to fill Yankee Stadium.
Keeping ecotourists out of the sanctum sanctorum for tigers
So, ecotourism has been considered an important component of conservation efforts. The Indian Supreme Court, however, has decided that tigers may now also be saved from ecotourists. The highest court was responding to a public interest litigation (PIL) that challenged safari tours in the core zone of the tiger reserves. The decision is an important one since it could be an important turning point for the reportedly 1700 tigers in India. A newsreport regarding the decision is available http://www.deccanherald.com/content/266647/no-tourism-core-areas-tiger.html.
What's Fracking Gotta Do With Rajasthan?
As the legal debate over fracking rages, the flames are spreading in Rajasthan, India. The region is known for guar gum cultivation, which is used as an ingredient in some spices. The bean has now transformed into an important ingredient for fracking and reportedly promises many riches for farmers. Investment is naturally high and farmers will perhaps reap some of the reward. A copy of the report is available at http://www.ndtv.com/article/india/rajasthan-s-farmers-strike-gas-drilling-gold-with-tiny-bean-244179.
What this development signifies is that the environment and environmental issues are global. Now, decision regarding fracking in the United States will inevitably affect farmers in Rajasthan. Perhaps, the market developments in India will implicitly influence decisions in the United States and elsewhere. This also demonstrates that environmental issues always evoke economic issues.
And while I am on the topic of fracking, I would recommend this succinct op-ed on fracking by Professor Joseph Di Mento: http://www.law.uci.edu/pdf/djournal_dimento_070912.pdf.