November 2, 2012
Hurricane Sandy: Who are the winners?
In trying to provide an understanding of why getting an agreement on climate change mitigation is proving to be so very difficult, some scholars have presented the "winners and losers" theory. This thought-provoking theory posits that since the effects of climate change are disparate, i.e. some nations will benefit and others will lose from climate change, the winners are unlikely to expend money on climate mitigation action for reasons of corrective justice. [Eric Posner and Cass Sunstein, Climate Change Justice, available here]. Another theory posits that winners are more likely to support beneficial adaptation action, instead of mitigation action, and that climate change policy must therefore focus on investments in adaptation. [J.B. Ruhl, What should we do about climate winners?, available here]. A few have argued that in a global economy, that alleged winners such United States will also lose out in a global economy and must therefore participate in climate change mitigation efforts. [Jody Freeman and Andrew Guzman, Climate change and U.S. Interests, available at 109 Columbia L. Rev. 1531 (2009)].
While Hurricane Sandy has not been explicitly linked to climate change by scientists, it represents the very type of risk that scientists predict will increase with global warming and climate change. The fact that climate change has not occured in some other nation, but in the financial capital of the country (the world, indeed), weakens the claim that winners can be identified with accuracy and render their failure to address corrective justice claim understandable. It also highlights the limits of the theory that winners may be convinced to invest in beneficial adaptation rather than mitigation efforts [J.B. Ruhl has himself highlighted some of these limits and admits his theory serves a limited function]. It confirms the theory that even winners may be losers, because of the interconnected nature of our economy and the problem. More importantly, Huricane Sandy raises the question whether the winners should be allowed to take it all?
To support the above claims, I have listed the winners and losers of Hurricane Sandy and leave it to you to agree or disagree with or modify my preliminary list of winners and losers and how possibly they can be motivated to do to address climate change. Let me add that when it comes to individuals, it is hard to classify them as winners or losers clearly.
1. Sandbag companies
2. Construction companies (in the long term)
3. Construction workers?
4. Hotels in other locations having to charge strander passengers etc.
1. People--citizens, residents, visitors, business owners, employers, employees, etc.
2. Businesses in NYC and other locations--coffee shops, delis, shoe shops, clothing stores, electronic stores, law firms, banks, energy companies, airlines, restaurants, hotels, insurance companies etc.
3. Taxpayers in the form of lost infrastructure, services, tourism, and increased expenses to manage the hurricane and the problems in its aftermath.
Please feel free to suggest changes to the list.
November 1, 2012
Symposium on "Securing Water Supplies for the Future"
Last spring, the Texas Wesleyan Journal of Real Property Law hosted its inaugural symposium, entitled Wildfire Law: Private Property & Public Interests, to rave reviews. In the coming weeks, the journal is slated to publish the articles emanating from that event, authored by the likes of Jamison Colburn (Penn State), Robert Keiter (Utah), Will Rice (St. Mary’s), and Rachael Salcido (McGeorge). These articles will be available here.
Though the wildfire symposium will be a difficult act to follow, the journal is pleased to host another exciting symposium, entitled Securing Water Supplies for the Future: Risks, Challenges, and Opportunities, next Friday, November 9. The one-day event will focus on legal and policy issues related to local, regional, and national water scarcity challenges. The list of presenters is noted below. Essays and papers presented at the symposium will be published in the Journal’s spring 2013 issue. For more information about this symposium, click here.
October 31, 2012
Obama on Clean Energy: Actions Speak
Unlike climate change, clean energy policy has received a fair bit of attention in the presidential campaign. Obama made clear that he supports renewable energy as part of his "all of the above" approach, while Romney would end an important federal subsidy for wind power and otherwise increase reliance on coal, oil and gas. But for those who are disappointed that Obama didn’t say more about our need to transition away from fossil fuel and towards renewables, remember the old adages “actions speak louder than words” and “put your money where your mouth is.” Here are some facts about Obama’s actions and expenditures:
First, we must recall that subsidies for fossil fuels have been a fixture in US energy policy. As discussed in a recent report by venture capital firm DBL Investors, these subsidies have come in many forms including direct payments and preferential loans; favorable tax treatment; and government investment in R&D and infrastructure. Coal mining companies have enjoyed generous tax treatment since the early 1930s, and the government’s investment in geological surveys and railroads also greatly facilitated coal-fired electricity. Natural gas combustion technology benefited from billions of dollars worth of jet engine technology research funded by the Department of Defense research. The report finds that, in total, the oil and gas industries received about $350 billion in subsidies between 1918 and 2009.
But that’s not all. Fossil fuel companies enjoy an incredibly huge subsidy because we don’t pay the full social and environmental costs of fossil fuels. Both conventional fossil fuel pollution and carbon pollution impose significant costs on society. For example, a National Research Council study, The Hidden Costs of Energy, calculated aggregate health and environmental damages associated with conventional air pollution emissions from coal-fired power plants in 2005 at approximately $62 billion. The health and environmental damage caused by carbon pollution is referred to as the “social cost of carbon.” EPA’s estimated the social cost of carbon at $21 per ton, but a recent study suggests that the real cost is between $55 and $266 per ton. If the latter estimate is correct, US power plants received a subsidy of between $133 and $644 billion in 2010 based on their 2.4 billion tons of carbon emissions.
So what happened with energy subsidies during Obama’s administration? Importantly, Obama has repeatedly proposed reducing or eliminating subsidies for fossil fuels. Also, under Obama, renewable energy started receiving significant federal subsidies. The American Recovery and Reinvestment Act of 2009 committed $21 billion to renewable energy. As a result, the US Energy Information Administration reported that in fiscal year 2010, renewables received 55% of the federal electricity production subsidy pie ($6.6 billion) while fossil fuels received 15% ($1.8 billion). Of course, it bears reminding that (1) this money only lasted a couple years, and (2) if you consider the environmental and social costs imposed by fossil fuels, then fossil fuels still won hands down.
In sum, Obama has taken action and dedicated significant resources to support renewable energy. With another four years, there is a good chance that the country will continue to move forward in transitioning from fossil fuels to renewables.
- Lesley McAllister
October 30, 2012
In Case You Missed It - Week of October 21-27
1. The first U.S. Tar Sands project approved
The Utah Division of Water Quality ("the Division") issued U.S. Oil Sands Inc., a Calgary-based Canadian mining company approval to mine oil sands in Book Cliffs, Utah. However, the Division does not require the company to first obtain a permit for groundwater pollution monitoring or a pollution permit. The decision has been challenged by two environmental groups, Living Rivers and Western Resources Advocates, but has thus far been rejected by an Administrative Judge, who has rejected the claims by petitioners. A report on this issue is available here and the order of the judge is available here.
2. Germany's Problem of Excess Renewable Energy and NIMBY
Germany faces a unique problem--during high winds, its wind power generators generate so much energy that they cannot store that they send to their neighbors-the Czech Republic and Poland. However, the two nations are unable to deal with the overload and have decided to disconnect the grids to avoid power outage from surge overflows. This an entirely different problem, which points to the critical need for law and policy to promote renewable technology. A report is available here.
A Climate-Ready City for India?
If you like sparkling diamonds and saffron saris, you will love Surat, India’s bustling, no-nonsense city, some 250 kilometers north of Mumbai, near the Arabian Sea. If you’re wearing a new diamond, there’s an 80% chance its was shaped by Surati hands (and laser beams too). And nearly every Indian has something in the closet from Surat—which is what you’d expect from a city whose clattering looms churn out 30 million meters of raw fabric a day.
But Surat, with a population of 4.5 million, faces big challenges too. Its proximity to the Tapti River delta—a strategic advantage in trade—also makes Surat a flood magnet. In the last 20 years, the city has been drowned by three major floods caused by emergency releases from an upstream dam. Lesser floods, caused by hard rains, occur more frequently, interrupting local business and displacing families living in flood plains. In 1994, a flood like that led to an outbreak of the plague. In addition, tidal surges moving up the mouth of the Tapti River threaten the city from the opposite direction. Even on calm days, high tides push salt water into parts of the river needed for drinking. All of these problems will be made considerably worse by climate change, whose effects include stronger downpours and rising seas.
For these reasons, Surat has developed a “City Resilience Strategy” focused on adapting to climatic change. The initiative is supported by the Asian Cities Climate Change Resilience Network (ACCCRN), an organization launched in 2008 and funded by the Rockefeller Foundation. ACCCRN supports adaptation work in ten cities, including three in India. (I’ll tell you about another, Gorakhpur, in a future post).
Because Surat is seen as a leader among ACCCRN projects, I was eager to see what the city was doing and how its work might be replicated. I spoke with city officials, business leaders, and public health experts. I perused the aeration basins of a water treatment plant, climbed the floodgates of a major river embankment, and threaded my way through a township built to replace a flood-prone slum. I even toured a state-of-the-art diamond-polishing facility because—well—when would I get to do that again?
In just a few years, Surat has accomplished quite a bit. With the help of outside experts, the city has assessed the climatic risks in flood management, energy, and public health. It has even mapped the social vulnerability of neighborhoods in terms of social cohesion, education, and class. The city is implementing a new early warning system for major floods and designing an inflatable dam to protect the river from saltwater intrusion.
Almost all of this work has been accomplished through a flexible and relatively loose network of public officials, business people, and community members organized around one compelling environmental goal. (I’ve written about the promise and pitfalls of such networks in the context of adaptation here.)
It’s impossible to know at this early stage how effective this experiment with “green governance” will be. Surat, one of the fastest growing cities in the world, suffers from a shortage of affordable housing, rampant sprawl in flood zones, and the complete absence of public transportation.
And I wonder how easily its resilience strategies can be duplicated elsewhere in the country. Before you get to green governance you need good governance, and that, in some quarters, is as elusive as a Bengal tiger. And note that Surat is a comparatively wealthy city. Its reliance on foreign trade and investment is one reason the business community has been such a strong supporter of expensive infrastructure.
Still, I admire the speed and efficiency with which Surat has marshaled its resources. And the commitment of city officials and other advocates I met can only be described as diamond-hard.
- Rob Verchick
October 28, 2012
Why Didn't We Try this Sooner?
This fall, for the first time, I'm teaching a legislation and administrative law course to 1Ls. This isn't a new innovation--some schools have been doing this for years--but it is still a minority approach, and an approach with a mixed reputation. One professor at another school, hearing of our experiment, recently said to me something along the lines of, "everyone who's tried that has regretted it, haven't they?"
Two months in, we have no regrets, and I'm starting to wonder why everyone doesn't do this. There are several reasons why a 1L legislation/administration course makes a lot of sense. First, the material provides a foundation for so many other law school courses. The relationship to environmental law is obvious, but other subjects from immigration law to securities regulation to clinical practice all will make a lot more sense if students arrive with some background in statutory interpretation and administrative law. Second, we're finding that there is a strong synergy between the legislation/administration course and an introductury constitutional law course. Multiple students have commented on how learning statutory interpretation theories helps them understand theories of constitutional interpretation, and vice versa, and the separation of powers questions that form the core of most 1L con law courses are also centrally at issue in administrative law.
Of course, another reason the course is valuable is the importance of the material to modern legal practice, but on its own that's just a reason for students to cover this material at some point in their legal careers, not necessarily in the first year (though first-year coverage does ensure that they don't skip the course, which some students otherwise probably do).
Two months is too soon to have a thoroughly informed judgment, of course. The real test will play out over the next three years, as the students revisit (and hopefully remember) concepts learned in this course in a wide variety of other contexts. But even at this early stage, I'd happily,if somewhat tentatively, recommend teaching administrative law to 1Ls.