September 22, 2012
ABA SEER Fall Meeting -- Austin, Texas
Each year, the ABA's Section of Environment, Energy, and Resources holds an annual Fall Meeting that provides some of the highest quality programming available on emerging issues in environmental law. It's also a fantastic opportunity to network with colleagues and other experts in the field.
This year, the 20th Annual Fall Meeting, looks to prove no different. The meeting will be held in Austin, Texas from October 10-13. It is set to feature a number of fascinating panels (a number of which should be particularly interesting if, like me, you love all things energy). A few highlights include:
- Keystone XL Pipe Dreams: Game On or Game Over?
- Environmental Law Before the Supreme Court
- Greenhouse Gas Update: EPA Rule Challenges, Cap and Trade, LCFS, Common Law Litigation, and Public Trust
- Energy, Environment, and Politics in 2012: Expectations and Prognostications for the Next Four Years
- Social Media and Environmental, Energy, and Resource Lawyers
- Environmental Impacts of Oil and Gas Production in Shale Formations: Policy, Perception, and Reality
- Waiting for the Next Big Bang: ERCOT as the U.S. Grid in Microcosm
On top of this, the meeting coincides with the Austin City Limits Music Festival, so you can add some phat grooves to your environmental law diet (e.g., Florence + the Machine, Alabama Shakes, Red Hot Chili Peppers, The Black Keys, The Shins, Weezer, The Boxer Rebellion, Gotye, and more).
September 20, 2012
Income Inequality and Trees
On this morning’s edition of National Public Radio’s “Marketplace,” Jeff Horwich interviewed Tim DeChant on the correlation between income equality and trees. The spot coincided with the release of aggregate data by the Census Bureau indicating that income equality is on the rise in twenty states.
DeChant, the host of the blog persquaremile.com, recently reported on a 2008 study conducted by forestry scholar Yaoqi Zhang (Auburn) and planning scholar Pengyu Wu (Boise State). Assessing data from 210 urban areas, the study found a strong correlation between income inequality and tree cover. Motivated by the study, DeChant turned to GoogleEarth to see just how evident the tree cover disparity might be, and posted a host of comparative photos here. Describing his reaction when he first glimpsed the aerial images below, DeChant explained in today’s NPR interview that West Oakland looked like “a concrete jungle,” while neighboring Piedmont looked “like a real jungle.”
As he explained to Horwich, DeChant attributes the comparative lack of trees in lower-income areas to wealthy individuals and cities having the economic resources and real property to plant and maintain more trees. He suggests that this reality is disconcerting in light of trees’ direct economic impacts (e.g., trees increase property values, ease cooling costs, alleviate air pollution, reduce stress, etc.).
Today's NPR interview obviously did not---and could not have in the brief time allotted---address all of the many pressing issues associated with urban forestry. For instance, it did not raise the point that, beyond the noted economic impacts, trees can have significant “existence value;” that is, people might feel a lost sense of well-being by virtue of the fact that natural features of the land are depleted in areas outside their own daily surroundings. In addition, it did not highlight the important distinction between wild and human-planted trees. And perhaps most significantly, as an empirical matter the 2007 study that served as the initial trigger for DeChant's blog posts did not seem to offer any causal link between tree cover and income inequality, though the interview could have been interpreted to suggest that it did. Still, the story calls attention to the advantages and challenges of incorporating green space into local planning and development models.
September 18, 2012
Federalism in Fracking: Updates on the Regulatory Experiment
Legal scholars have finally begun to take on the pressing federalism questions raised by the expansion of shale gas development, including hydraulic fracturing -- also described as fracing, fracking, hydrofracking, or whatever else you'd like to call it. (I usually refer to the whole process as tight sands and shale gas development, since it appears that many of the risks arise not from the process of fracking itself but from other stages, such as disposal of drilling and fracturing wastes. But fracking is so much easier--and perhaps more fun--to say.)
In a thorough and interesting article forthcoming in the University of Pennsylvania Law Review, Professor David Spence explores fracking federalism issues through traditional justifications for federal regulation, such as externalities that cross state boundaries, races to the bottom, and national interest in the issue. He concludes that federal regulation should be limited to the areas in which fracking has interstate effects or involves national interests, such as greenhouse gas emissions and disposal of fracking wastewaters through treatment plants into rivers. Professor Spence believes that many of the effects are local, suggesting that the areas for proper federal involvement are somewhat narrow. In a New York Times op-ed, Professor Jody Freeman proposes a more comprehensive, cooperative federalist regime involving a floor of federal requirements.
I'm glad that the scholarly conversation about the best level(s) of governance for shale gas development has begun in earnest, and I hope that it will expand. In the meantime, the grand regulatory experiment continues to play out at the state, local, and sublocal levels, while the EPA continues to study fracking and occasionally get involved. It wouldn't be fair to suggest that this is an organized experiment--indeed, these efforts might best be described as hasty and sometimes haphazard responses to a rapidly expanding practice. States do engage in some comparison of their regulations through the Interstate Oil and Gas Compact Commission. But the IOGCC sometimes appears to focus more on building a high fortress around state authority, and I worry that this distracts from its efforts to encourage states to compare and improve their oil and gas regulations. In addition to the first link on its Hydraulic Fracturing page--"States' Rights"--the IOGCC's page includes links such as "States Challenge Attempted Federal Power Grab in Hydraulic Fracturing Issue," and a full-paragraph reference to a much-criticized 2004 EPA report that concluded that fracking for coalbed methane posed few risks and that further study was unnecessary. (The EPA has since commenced a new study of fracking in shales.)
The State Review of Oil & Natural Gas Environmental Regulations (STRONGER) also inspires some important state coordination. STRONGER, formed by the EPA and the IOGCC in 1988, emerged after the EPA decided to not regulate oil and gas exploration and production wastes under Subtitle C of the Resource Conservation and Recovery Act. The organization suggests waste management guidelines that states should follow and conducts voluntary reviews of state oil and gas regulatory programs, including hydraulic fracturing regulation.
STRONGER and the Ground Water Protection Council--a nonprofit association of state regulators--also have worked together to form the Risk Based Data Management System, which tracks some "oil, gas, injection well, and source water protection activities." That system provides a link to FracFocus, which discloses chemicals used at certain hydraulically fractured wells. Like the IOGCC, however, the GWPC focuses some of its efforts on supporting state-level authority over hydraulic fracturing. In 2000, it issued a resolution supporting a congressional clarification to exclude hydraulic fracturing from the definition of underground injection under the Safe Drinking Water Act. Congress granted the GWPC's wish in the Energy Policy Act of 2005.
As states coordinate (a bit) and in some cases resist federal regulation, they have begun to make regulatory changes of their own. In December 2011, West Virginia passed a relatively comprehensive revision of its oil and gas laws to address shale gas development risks. Pennsylvania, which has updated its shale gas regulations several times, most recently passed Act 13 (HB 1950) in February 2012. This Act strengthens many state environmental regulations for fractured (unconventional) wells, but it also raises new federalism issues by expanding state preemption of local control. In addition to reaffirming the state's existing, general preemption of local oil and gas regulation, the Act provides that any local ordinance regulating oil and gas activity must "authorize oil and gas operations, other than activities at impoundment areas, compressor stations and processing plants, as a permitted use in all zoning districts," with exceptions for residential areas. It also requires municipalities to "authorize natural gas compressor stations as a permitted use in agricultural and industrial zoning districts and as a conditional use in all other zoning districts" if the compressor stations meet certain standards.
Some concessions to municipalities accompany this broad preemption of municipal regulation in Pennsylvania. Act 13 allows them to charge an unconventional gas well fee and strengthens certain state-level environmental protections, for example. Several municipalities objected to this expansion of state authority, though, and they sued the state. In July, the Pennsylvania Commonwealth Court in Robinson Township v. Pennsylvania (2012 WL 3030277) struck down many of the preemption provisions, including those requiring that states authorize oil and gas operations in most zones and compressor stations in industrial and agricultural zones. Specifically, the court found that these provisions violated substantive due process by forcing municipalities to "to violate their comprehensive plans for growth and development." Governor Corbett has appealed to the state supreme court. Despite the ruling of the commonwealth court, the state's public utility commission is continuing to review local ordinances to determine whether they comply with Act 13.
As Pennsylvania attempts to preempt local action, courts in New York have allowed the towns of Dryden and Middlefield to ban oil and gas development and fracturing through their zoning ordinance, despite general state language superseding local laws relating to the regulation of oil and gas. At the sublocal level, a New York court allowed a property owners' association to prohibit gas development by enforcing a restrictive covenant that banned "commercial uses" in the community. See Weiden Lake Property Owners Association v. Klansky, 32 Misc.3d 1234(A), Sullivan County, NY, 2011. Colorado is seeking a middle ground; its Regulatory Task Force on Cooperative Strategies Regarding State and Local Regulation of Oil and Gas Development issued recommendations in April.
As scholars exchange ideas, states, municipalities, and private governments will continue to spar over the proper location and content of regulatory authority. Hopefully the experiment will lead to something better; there's progress, but much room for improvement remains.
September 17, 2012
What India Thinks about Climate Change
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”
We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”
I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.
Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:
Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.
(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)
But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.
Here’s another excerpt from the report’s “Highlights”:
• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.
• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.
• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.
• 70 percent favored a national program to teach Indians about global warming.
This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)
But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.
Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at Loyola University New Orleans
"We Despise Entitlements and Taxes!...Er...Unless They Support Our Business" - Musings on the Opposition to the New Forest Service Planning Rule
Recently I commented on timber, ranching, and off-road recreation groups' recent challenge (which you can read here) to the Forest Service's new planning rule (which you can read here). Ultimately the debate is about whether the new planning rule can require stronger consideration of ecosystem services, habitat protection, and other environmental objectives during the planning process for operations on federal forest lands. I thought I would provide a bit further explanation of my thoughts here.
As Jim Salzman, James Rasband, and Mark Squillace so eloquently point out in their natural resources law book on the subject, the history of the Forest Service’s primary focus on consumptive use of forest products is deep. Gifford Pinchot, the first head of the Forest Service, actually opposed the creation of national parks because he believed that forests should not be considered recreation or ecological preserves. Yet as long ago as 1960 the Multiple Use and Sustained Yield Act expanded the purposes of national forest management beyond timber extraction to include, at least on paper, "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." All of these uses were to be treated co-equal and managed on balance with the other uses, even though as a practical matter this mandate did not really change the long-standing focus on extraction. In addition, the National Forest Management Act itself gives the Forest Service a great deal of discretion in the planning process, requiring it to use an interdisciplinary approach and to integrate understandings of physical, biological, and economic sciences in order to “insure consideration of the economic and environmental aspects of various systems of renewable resource management,” and to “provide for diversity of plant and animal communities based upon the suitability and capability of the specific land area in order to meet overall multiple use objectives.” The agency was further directed by Congress to appoint a committee of scientists to provide advice on how to achieve these management objectives, which it clearly did in crafting the current rule.
In this way, the new planning rule does not seem extraordinary. In fact, since the 1960’s the Forest Service has continually had to answer to challenges that it was not following statutory multiple use requirements because it continued to elevate extraction over other uses - in other words, the Forest Service has had to consistently answer to challenges that it has consistently not done what it now seeks to do. So if anything the court challenge may be construed as challenging the shift from traditional practice notwithstanding statutory mandates, rather than a valid challenge to the text of the statutes at issue.
This gives rise to a solid argument that the new rule actually corrects an imbalance in the past, whereby “multiple use” language that should have been aimed at protection of ecosystem services, habitat protection, etc. was basically ignored, and these values were excluded from the planning process. These services are critical not only to the ecological health of a forest, but the long-term economic well-being of both the timber industry as well as the public with access to and living adjacent to national forests. As I have blogged about previously, these services are worth a great deal from both an ecological and economic perspective, and include watershed protection (protecting both the quantity and quality of water available), soil stabilization and erosion control, air quality (such as reducing particulate matter and other pollutants), climate regulation and carbon sequestration, biological diversity, recreation and tourism, and even non-timber commercial products, such as medicines or food (such as salmon in the Pacific Northwest), only to name a few services.
Beyond the law and policy aspects of the rule and its challenge, I cannot help but consider the curious position of some sectors, traditionally associated with vocal opposition to increased taxes and "government handouts" or entitlements, who seem to embrace so readily the misuse of tax dollars and the receipt of their own entitlements. These forests are everyone's forests - we all pay taxes to maintain our national forests. Those with economic interests in and directly adjacent to national forests seem to ignore that fact when they assert a monopoly on the goods and services provided by national forests. Perhaps I and other citizens would like habitat protection to be part of the planning process because I would like for that habitat or wildlife to exist the next time I go visit a national forest for which I am paying.
Similarly, it is fascinating to watch these groups so stringently assert rights to entitlements to which they have become accustomed, and apparently dependent upon as a form of corporate welfare. Their economic operations and recreational pursuits are dependent upon lands and resources provided by the government, and are directly subsidized by citizens' taxes. At the first sign of those entitlements being taken away, these groups cry foul, much like those European citizens in opposition to the austerity measures taken by governments whose political philosophy would likely not match up with large blocks of those currently opposing the rule.
Regardless of my interest in these political aspects of the situation, ultimately I think there are good arguments that the new planning rule, while potentially seen as a dramatic shift from traditional practice and the institutional inertia of the Forest Service, is not a dramatic shift from the text of forest management statutes – and indeed seems to be shifting more closely to the requirements contemplated by the text of those statutes.
- Blake Hudson
September 16, 2012
Call for Papers: Central States Law School Association Conference
Annual Scholarship Conference
Cleveland-Marshall College of Law
The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress.
The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.
To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012. Any late submissions will be considered on a space available basis only.
For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at email@example.com.
In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools. If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at firstname.lastname@example.org.
For more information about CSLSA, visit our website at http://cslsa.us/.
In Case You Missed It -- Week of September 9
- InsideEPA reported that EPA issued a compliance order permitting Shell Oil Company to do exploratory drilling in the arctic, even though it is expected to violate its Clean Air Act permit
- A proposal to authorize OIRA review of independent agencies has stalled for now
- Japan announced a policy to end its reliance on nuclear power by the 30s
- check here for the presidential candidates' responses to questions about science