Friday, September 7, 2012
Federal oil and gas deposits were back in the news this week when the Tenth Circuit effectively upheld the Interior Department's decision to withdraw 77 controversial leases from auction.
The dispute traces back to the waning days of the Bush-43 administration, which put a large block of leases up for auction as it was heading out of office. Some of these were proximate to valued scenic and recreation areas, including Arches National Park and Dinosaur National Monument, and so environmentalists protested. Contesting possible climate change impacts, the auction process itself also became a lightning rod when Tim DeChristopher submitted false bids in a civil disobedience effort to monkeywrench the sales. Then, when Ken Salazar became Secretary of the Interior, he withdrew 77 of the leases from auction. This he announced in a February 4, 2009 press conference, followed by an internal memorandum making the decision official two days later. Numerous leaseholders and various counties then challenged Salazar's decision in federal court.
In a notable administrative law decision this Wednesday, Impact Energy Resources v. Salazar, the Tenth Circuit ruled that the district court had properly dismissed the lawsuit challenging Interior's decision as time barred. Plaintiffs had sued 90 days after notice of the lease withdrawal was mailed to them on February 12, 2009, not within 90 days from when Salazar directed the withdrawal via his February 6, 2009 memorandum. Because actions under the Mineral Leasing Act are subject to a 90-day statute of limitations, the panel, 2-1, found that the lawsuit was too late.
On this score, there were two interesting currents running through the decision. First, the majority split over how a "final" decision under the Mineral Leasing Act interfaces with a "final agency action" under the APA. Judge Lucero contended that once a final decision was made by the Secretary under the MLA, the question of whether the agency itself had made a final decision for APA purposes became immaterial: "The MLA unambiguously starts the limitations clock when the Secretary makes a final decision, not when the BLM engages in final agency action." By contrast, Judge Seymour would have ruled that a Secretary Salazar's final decision under the MLA was also a final agency action under the Administrative Procedure Act. "[I]t seems clear to me," she wrote, "that when the Secretary makes a final decision for MLA purposes he is also taking 'final agency action' pursuant to the APA."
Second, the majority found that there was no equitable tolling argument based on the delay between Salazar's issuance of the internal memorandum withdrawing the leases and the BLM's providing notification of that decision to the lessees. "Although the Energy Companies had time to prepare their claims before the limitations period expired, they gambled that a court would accept their proffered limitations theory. Equitable tolling is not required under these circumstances."
Although one could claim that this decision is limited to the narrow area of mineral leasing on federal lands, it could make much larger waves going forward. At the least, it provides precedent that Interior can rely on to make internal decisions about mineral leases and then control the clock for how quickly parties might challenge those decisions. As Judge Tymkovich wrote in dissent, "The [majority's] opinion allows the Secretary of the Interior to make a non-public final decision and start the clock on judicial review of that decision, even if the Department tells no one about it." Whether one is pro- or anti-federal leasing, the lack of transparency that such a regime could allow for seems problematic. Indeed, even if this ruling remains limited to federal mineral leases, it could have wide impacts given how much of the American West is dominated by federal land.
Perhaps more broadly, the decision could be relied on to give agencies more control over whether they might be sued in other statutory regimes that, like the Mineral Leasing Act, start the statute of limitations clock from when a decision is made rather than when the action accrues. In this way, the Tenth Circuit's decision also shows how central to environmental, natural resources, and energy issues administrative law continues to be. I often tell students that every modern law student should take administrative law. The Tenth Circuit's ruling is yet one more arrow in that quiver.
Finally, and most reaching of all, the Tenth Circuit's decision highlights what long has been, and in all likelihood will continue to be, a prime battleground for environmental disputes in the West -- control over federal lands, how those lands are utilized, and what role they play in combatting or enabling climate change. Is this why the proposed Romney-Ryan energy plan reads as much like a polemic on states rights as a substantive clarification of their preferred energy policy? Much more could be said about why it is tragic that candidates think they must make energy policy partisan, when it is one of the most important places we can find win-win-win solutions that both create jobs and protect the environment we all rely on to live. For now, though, it is enough to note that the Tenth Circuit's decision is one more way that federal oil and gas leasing could be a key area for debate leading up to this November.
Thursday, September 6, 2012
Dan Farber has posted a preliminary list of faculty searches in environmental law and related areas on Legal Planet, and hiring chairs have identified select other environmental searches on PrawfsBlawg. I look forward to the prospect of meeting future environmental law professors next week at Arizona State University, as I again will have the distinct pleasure of serving as a panelist at the annual Aspiring Law Professors Conference at the Sandra Day O’Connor College of Law.
In its fourth year, the Aspiring Law Professors Conference is “designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.” The program includes a keynote address by the esteemed Paul Horwitz, Gordon Rosen Professor of Law at the University of Alabama School of Law, as well as break-out panels addressing the nuances of the appointments process and opportunities to participate in a mock interview and/or present a mock job talk.
My parents live in New Orleans (and my brother was originally supposed to get married there the weekend after Katrina), so I was particularly focused on Hurricane Isaac bearing down on New Orleans last week on the Katrina's 7th anniversary. I was both relieved that it was much less catastrophic and concerned about the many impacts it brought. One of those impacts highlights the interconnection between our choices around fossil fuels and the complexities of disaster preparedness as our climate changes.
As was widely reported, one of Hurricane Isaac's most significant environmental impacts was the reappearance of oil leftover from the BP Deepwater Horizon spill. While as BP points out, it is hard to know exactly how much of the oil is from the spill rather than other sources, some of it likely is. That oil serves as a potent reminder of the long-term human and ecological risks we face when we fail to manage the risks of unconvention fuel extraction adequately.
That reemergence of oil also illuminates the importance of focusing on climate change adaptation even as we mitigate to limit its impacts. While it is difficult to link particular severe storms to climate change, our risks of such events increase with climate change. Hurricane Isaac highlights that we need to be ready at our coastlines for these storms and what they may unearth--the good news, despite the losses experienced by many in this hurricane, is that New Orleans learned from its Katrina experience and was much better prepared than seven years ago. We need to keep learning and preparing (there are already commentaries on what New Orleans still needs to work on based on the Hurricane Isaac experience), and also try to make proactive decisions to limit risks.
The hurricane and the reappearance of oil take place against the backdrop of our four year ritual of partisan political conventions, made all the more dramatic by the Republican Party's choice to put its convention in Tampa during hurricane season, which resulted in disruptions from a storm looming on Katrina's anniversary. What makes me sad about our national energy debate (and debates on many other issues) is that there is so much that both parties should agree upon, and so little interconnection of individual hot button issues and federalism debates into the energy system as a whole, something that's been a focus of mine lately in a new project with Hannah Wiseman. Most pressing energy challenges--from managing the risks of deepwater drilling or hydraulic fracturing to updating our aging electricity grid and adding needed transmission lines--require us to think in innovative ways about how our fragmented, multi-level regulatory structures could be more effective in getting the job done. I hope, even if it's in quiet ways outside of the public attention directed to election year disagreements, we can find our shared values and make space for complicated, holistic, out-of the box thinking.
Wednesday, September 5, 2012
Please see the attached announcement and rules here: APA-PLD Student Writing Competition 2013, and a brief description below.
The 30th Annual Smith-Babcock-Williams Student Writing Competition is sponsored by the Planning & Law Division of the American Planning Association. The deadline for submission of entries is June 7, 2013.
The Competition is open to law students and graduate planning students writing
on a question of significance in planning, planning law, land use law, local
government law or environmental law.
The winning entry will be awarded a prize of $2,500 and will be submitted for publication in The Urban Lawyer, the law journal of the American Bar Association's Section of State & Local Government Law. In addition to the first prize, the Competition will offer a second place prize of $500 and a third prize of $250. Up to two additional submissions may be awarded Honorable Mention.
Monday, September 3, 2012
The BP oil spill case is being handled as an admiralty tort. My colleague, Professor John Costonis, questions whether this is the correct body of law under which to decide the case. In his article (recently posted on SSRN), And Not a Drop to Drink: Admiralty Law and the BP Well Blowout, Costonis makes some compelling arguments that admiralty law in fact is not the correct body of law under which to handle BP claims. Though Deepwater Horizon was a vessel, did the spill actually occur from the vessel? Unlike Exxon Valdez, the oil came from a very different source. Nearly 5 million barrels emanated from the Outer-continental Shelf seabed, which, as Costonis notes, is "denominated by OCSLA as an exclusive federal enclave and a component of the nation's public lands." Contrast this amount with the small amount of oil that actually emanated from the "vessel," which was only 45/10,000ths of the total discharge.
Due to these and other distinctions between the BP disaster and previous admiralty and oil spill cases, Costonis argues that the BP suit should be decided as a matter of environmental law under OCSLA and OPA, with liability and damages attaching per those statutory schemes under principles of "polluter pays." Furthermore, Costonis notes a broader issue that implicates questions of both judicial discretion in applying the law as well as institutional integrity. It seems the Fifth Circuit is predisposed to decide cases under admiralty law, maintaining what Costonis calls a "reflexive embrace of admiralty." In the end, Costonis makes a strong argument that institutional inertia is not a good justification for misapplying the law.
- Blake Hudson