December 1, 2012
Rethinking Sustainable Development to Meet the Climate Change Challenge
For the next three weeks, we are going to be doing something a little different here at Environmental Law Profs. We are going to be posting a series of 15 short essays all addressing the theme of sustainability and climate change. These essays that will appear each week day from now until Christmas are the product of discussion of the Environmental Law Collaborative.
A few hardy souls, which include some of the bloggers here at Environmental Law Profs, formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. In the summer of 2012, scholars gathered in the woods of Connecticut to debate the value of scholarly research and the potential of legal literature to effect social and environmental change. With visions of Airlie House and armed with the principles of collaboration and the necessities of ecological fragility, the group sought to foster progress toward an adaptive, conscious, and equitable governance of actions that impact local and global ecologies.
This inaugural Workshop addressed the re-conceptualization of sustainability in the age of climate change. Climate change is forcing developments in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. Climate change, however, suggests that the context for sustainable decision-making is shifting. Accordingly, the Workshop focused on examining the re-conceptualization of sustainability in the age of climate change, including (but not limited to) framing the term in climate change discussions; reaching sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in adaptation and resiliency preparation.
The event produced an intensive and collaborative assessment of sustainability in the age of climate change. The essays that will be appearing this month examine the process of adapting the principles and application of sustainability to the demands of climate change, including (but not limited to) framing the term sustainability in climate-change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in formulating adaptation and resiliency strategies. Furthermore, these essays also contemplate the role of law and legal systems in crafting effective climate-change-adaptation strategies and consider feasible strategies in the context of specific examples.
In the coming weeks, we will post contributions from Rebecca Bratspies, Michael Burger, Betsy Burleson, Robin Craig, David Driesen, Alexandra Harrington, Keith Hirokawa, Sarah Krakoff, Katy Kuh, Stephen Miller, Pat Parenteau, Jessie Owley, Melissa Powers, Jonathan Rosenbloom and Shannon Roesler.
Please tune in, comment freely and help us further the conversation on sustainability and climate change.
-- Betsy Burleson, Michael Burger, Keith Hirokawa and Jessie Owley
November 29, 2012
Hurricane Sandy Intervenes in Takings Case before the NJ Supreme Court
As noted here on this blog several months ago, the New Jersey Supreme Court granted certiorari in the important takings dispute of Borough of Harvey Cedars v. Karan. It appears that Hurricane Sandy may prove to play a role in the case’s resolution.
The decision on appeal upheld a $375,000 takings award to an oceanfront homeowner who had refused to convey an easement to allow beach and dune replenishment at the Borough’s offered condemnation price of $300. A jury had fashioned this award based on the claim that the replenishment increased the height of the dune and thereby reduced the value of the claimant’s property by impairing the claimant's view of the water.
In a simultaneously ironic and eerily predictable twist, the Asbury Park Press reported this week that the replenished dune appears to have saved the claimant’s $1.7 million home from Hurricane Sandy’s wrath. Dunes do not repel storm surge but rather generally serve as sacrificial lambs. Here, the surge from Sandy washed away much of the replenished dune seaward of the claimant's home, but left the home itself intact.
That the Borough’s replenished dunes provided the shore protection experts had predicted has only served to increase the tensions surrounding this controversial property rights case. According to the Press, the Borough’s Mayor, Jonathan Oldham, stated that “50 percent of the dune is gone in the northern part of the township, while in the southern section of the borough there is only 15 percent left. All of this fighting about the easements is short-sighted, when you realize what could have happened.” Yet attorney Kenneth Porro, who represents several oceanfront landowners on Long Beach Island, is reported as asserting, “The oceanfront property owners are not villains. The real villains here are the government officials who blatantly disregard our inherent constitutional and civil rights and are attempting to use the devastation of the storm to cover up their unconstitutional acts.”
The case presents an important opportunity for the New Jersey Supreme Court to consider the range of direct and indirect—and short and long term—benefits that the government’s use of condemned land imparts on condemnees as an offset to condemnation awards. The Court has not yet scheduled oral argument. Stay tuned to the Environmental Law Prof Blog for updates on this important takings case.
November 27, 2012
The future of aviation emissions regulation: From EU to ICAO?
The European Union has decided to place a hold on its directive requiring all commercial airlines, including non-EU airlines, to participate in its emissions trading scheme. Per the “Proposal for a Decision of the European Parliament and of the Council derogating temporarily from Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community,” the EU has agreed to withhold the implementation of its Aviation Directive for non-EU airlines. The decision is based on developments at a recent meeting of the International Civil Aviation Organization (ICAO), where members agreed to work towards a framework for regulating emissions from the aviation sector by the Fall 2013 General Assembly meeting.
The EU decision is conditional on ICAO establishing a market-based mechanism that would reduce emissions by at least as much as projected under the EU ETS; that is non-discriminatory; and that sets reduction targets for all ICAO member countries. Absent such a result, the EU has indicated that it will begin to implement its directive on non-EU airlines. In effect, the EU appears to be demanding a measure that is comparable to its own directive.
The question is whether the ICAO can succeed in bartering a new agreement that is based on global consensus. ICAO has been engaged in identifying climate change impacts from airline emissions for nearly a decade now and has encouraged its 190 members to take and report voluntary measures to reduce airline emissions, by 2050. The EU’s expectation appears to go beyond voluntary action.
Thus far, ICAO’s Committee on Aviation Environmental Protection (CAEP) has agreed on a CO2 metric system to measure emissions from aircrafts operating with different technologies. Members have now agreed to consider a regulatory framework establishing CO2 standards. It must be approved by other members before it can be adopted by the Council. Much depends on the ability of nations to arrive at a consensus. The report is available here.
If members do broker such a deal, it may be a signal to approach the problem of climate change differently—by negotiating measures through existing organizations. Such a move in any case may not be undesirable, considering the fact that early reports suggest lack of adequate leadership at the Doha climate meeting, particularly with the EU facing some setbacks because of the EU debt crisis.
November 25, 2012
In Case You Missed It -- Week of Nov. 18-24
* Activists have taken to the trees to protest the Keystone XL Pipeline
* EPA proposed revisions to its Mercury and Air Toxics Standards ("MATS") rules for new power plants
* General Electric announced that it will purchase 2,000 of Ford Motor Co.'s C-Max Energi plug-in hybrid vehicle
* Nissan announced that it will decrease the price of its Leaf electric car
* The American Association of State Highway and Transportation Officials named Michael Lewis as its new president