February 10, 2012
Practical and Experiential Learning in Environmental and Energy Law
Increasingly, I find it important to bring the practical into the classroom. To be upfront, this view is not new for me. I joined the academy with the presumption that deep theory, legal doctrine, and careful analysis cannot stand alone; the best learning couples heavy doses of those with the real world. Five years in, consistent feedback from students and the bar have overwhelmingly confirmed what I initially assumed. At least some professors also seem to agree.
Injecting the practical is comparatively easy in some courses. In my civil procedure class, for instance, I am constantly trying to find ways to help students see that the rules are not just principles; they are tools that you can only truly understand if you pick them up and use them repeatedly. In the litigation context, avenues for making this clear are both discrete and fairly digestible, even in the first semester. Students in my class attend two court proceedings. They draft a complaint or an answer. They write a set of discovery. They complete a CALI exercise that tries to replicate the discovery process of a case. It is not uncommon on my exams for students to be asked to draft a motion, complete the next entry in a deposition transcript, or create a notice of appeal. Certainly, I have no illusions that any first-year student will leave my class a master of any of these tasks. But the hope is that by being exposed to some of them, students not only begin to gain an understanding of what litigators do on a daily basis, but also learn the material more deeply while laying a foundation of skills they will actually need in practice.
The question, then, is whether this kind of hybrid learning is also useful for more specialized, upper level law classes, particularly those in the environment, energy, and natural resource fields. More and more, I have become convinced that it is. Conceptually, this makes sense. Lawyers in any field have specific, practical skills they cannot be effective without. There is no reason this is not also true for the areas in which we teach. Having practiced for seven years, I know that's the case. The environmental lawyer is always translator: To handle a pollution case, you have to comprehend risk analysis and toxicology. To grapple with energy rates or mergers, a grasp of economics is essential. To do endangered species, biology is fundamental. In all these, an understanding of the industry the lawyer represents, or that the law at issue regulates, cannot be foregone.
The problem for the classroom, however, is twofold. First, there is a chicken-and-egg dilemma. Students cannot really dive into the details of many topics on a practical basis until they have the basics of the law under control. But getting to how that law really works is tough without practical exercises. Second, there is an allocation quandary. Every minute spent on a practical exercise deepens students’ understanding of that topic but does so at the expense of another subject area that could be covered instead. In courses that present as many fascinating issues as ours do, making this choice is often more painful—for me at least—than deciding, for example, whether to do another day on summary judgment or covering standards of review in civil procedure. At some point, moreover, too much of the practical in the classroom converts the substantive topic to a clinical one; there is a balance to find.
Nevertheless, I believe we owe it to our students to add this dimension to their understanding of the field. To that end, here are a few things we are doing in my energy law class this semester.
- Field trips to various energy sites, including to PacifiCorp’s Gadsby Power Plant earlier this week.
- Mock cost-of-service ratemaking exercises, using a hypothetical utility’s rate base, debt structure, and production costs.
- Guest lectures and case studies on actual energy controversies.
I’d be thrilled to hear what others are doing in their energy, environmental, or natural resources classes to add practical or experiential learning to the classroom.
(photo credit: S.P. Hansen)
February 9, 2012
Exactions and the Doctrine of Waiver
An earlier post on this blog raised the issue of whether the stringent takings standards of Nollan and Dolan are applicable at the point in time when the government, in a pre-decisional negotiating session, merely proposes a permit condition to counter environmental and infrastructural impacts of new development. A recent decision by the Florida Supreme Court in the matter of St. John’s River Water Management District v. Koontz concludes that the answer is no, though there are select opinions to the contrary in other jurisdictions. A related, or corresponding, temporal issue involves the doctrine of waiver: does a landowner, after acquiescing to a conditional permit, maintain the right to challenge the condition therein as a compensable taking? Several decisions out of California seem to suggest the answer is no. For instance, in Rossco Holdings, Inc. v. State of California, a state appellate court indicated that a landowner cannot challenge a condition attached to an issued permit after “specifically agreeing to the condition.”
If both Koontz and Rossco Holdings are correct, there arguably is never an opportunity to apply Nollan and Dolan. However, this obviously cannot be the case, for the U.S. Supreme Court unanimously preserved the Nollan and Dolan standards in 2005 in the course of clarifying components of its regulatory takings jurisprudence in Lingle v. Chevron, Inc.
So where does this leave the state of exaction takings law? My inclination is to say that Koontz is justifiable and Rossco Holdings — at least the above interpretation of Rossco Holdings — is suspect. Despite the many criticisms of and uncertainties surrounding exaction takings doctrine and the closely related unconstitutional conditions doctrine, the premise of these doctrines is evident: to protect people from being in the hopeless position of having no recourse but to submit to a manipulative, unconscionable state. Assuming this premise is both accurate and sound, it would seem that a landowner should be considered to have waived the right to challenge an exaction as a taking under Nollan and Dolan only after he or she has commenced the conditionally permitted construction or otherwise taken advantage of the permit.
February 8, 2012
Learning through Breaking Things Down
This winter, I have decided to embrace being in Minnesota by taking up cross country skiing. My timing, as ever, is impecable, since there hasn't been so much snow here this year. As a result, last night was only my third time doing on-snow rather than dryland training and my first time actually skiing in tracks.
Unsurprisingly, given my inexperience and limited intuitive athletic abilities, I was a mess at the beginning of the evening. I simply could not understand what the teachers meant when they were trying to get me to stride on flat terrain and was confused by confining my skis in the tracks. Lucky for me, very few people came out in the suboptimal conditions and so I ended up having a private lesson with Carol, an experienced instructor and racer. In two hours, she managed to teach me how to comfortably glide through a teaching approach that I told her at the end of the night was brilliant. Given that many blog readers are teachers who reflect a lot on pedagogy, I thought I'd share what she did and consider its implications for law teaching and for how we think about legal problems more broadly.
After trying to work with me in skis and poles at the beginning to no avail, Carol completely deconstructed what I was doing. She had me put my poles down and take my skis off and practice getting back into the right stance with no gear. Then, she had me put one ski on--still no poles--and practice doing the "kick" by having one ski in the wrong track and the other ski out of the track while I visualized scootering (something my kids do). Once I had a feel for that on both sides, she had me put on both skis (still no poles), and get the motion of kicking and gliding down. Finally, we added in poles, which it turned out I was also using wrong. So, then we did an exercise where I didn't move my feet and practiced double poling and single alternate poling. Finally, I put the whole thing back together and was miraculously improved. I'm not claiming to have any major skills, of course, but I actually was capable of doing the motion of gliding and could feel whether I was doing it right or not.
This experience got me thinking about all of the times we and our students and our children struggle along trying to get something right when there's something off with the underlying basics. I think there are a lot of times when we just need to take things apart, break them down, and figure the pieces out before we put them back together. This obviously won't work in every instance, but I think it may be part of the solution to some of our most vexing environment and energy problems--breaking down our assumptions to work towards a reconstruction that makes the "simple glide" work. And on a less intellectual note, I highly recommend the Ride and Glide program for any of you near the Twin Cities; I was very lucky to be referred there by my environment/energy colleague Elizabeth Wilson.
February 7, 2012
From Davos to Delhi...
How far along have we come in our efforts to integrate environmental protection action with economic decision-making? It depends on one’s perspective. Anyhow, environment, energy, and food security were an important part of the program at the World Economic Forum’s (WEF) annual meeting held in Davos between January 25 and 29, 2012. This high profile event brings together world leaders representing government, corporations, and civil society to discuss pressing issues facing the world. WEF provides an exclusive forum for world leaders to discuss pressing global issues that intersect economic concerns. This year was no different. While the global economy was on top of the agenda, sustainability remained an important theme.
Among several events and issues discussed, one report, More with Less: Scaling Resource Efficiency and Sustainable Consumption, provides an overview of key sustainability challenges and opportunities that were unveiled as part of the meeting. Particularly interesting is Figure 2.1. of this report. It highlights how resource constraints have pushed efficiency measures that can benefit both business and the environment. The Report also highlights other well-known environmental challenges such as high subsidies for fossil fuels, population growth, particularly the expansion of the middle class, and degradation of agriculture and forestry.
Interestingly, among the challenges identified by WEF is the low rate of patent application for environmental innovation—2.7%. This low figure is perhaps an indication of some policy gap that appears not to foster innovation where it is most needed. It is largely accepted that technological innovation is key to solve several of the world’s environmental problems. It would be interesting hear thoughts about how law and policy can promote more innovation in addressing myriad problems.
WEF in itself is not a problem-solving organization. However, it plays an important consensus-building role in identifying and reaffirming key environmental challenges. The engagement of important actors may provide insights into common grounds towards framing appropriate law and policy to address problems. Of course, some may consider WEF yet another exclusive networking event. Yet, the fact organizers of WEF documented the carbon footprint of the meeting and provided options for offsetting carbon emissions of attendees’ as part of the Greener Davos Initiative signals atleast some level of commitment to addressing the problem.
In the heels of the meeting in Davos, the Tata Energy and Research Institute (TERI) organized the annual Delhi Sustainable Development Summit (DSDS) between February 2 and 4 in New Delhi. This year’s meeting focused on the state of sustainable development 20 years after the Rio. Although more modest in scale, the meeting brought together notable world leaders, including the former Governor of California, Arnold Schwarzenegger. Showing muscle for environmental protection, the former Governor urged developing countries such as India to learn from the mistakes of developed countries. The Prime Minister of India, Manmohan Singh, who inaugurated the program, echoed his commitment for environmental protection. On the issue of climate change, he noted, “I can assure you that India will play a constructive role in the ongoing negotiations and we will certainly live up to whatever obligations fall upon us as part of a fair and equitable agreement.” Whether such an agreement can be reached of course remains the biggest legal challenge of our times.
If one were pessimistic, these events would be examples of the small space for legal intervention and a large space for spinning rhetoric. If one were an optimist, perhaps, discussions in these events can serve as laboratories for legal innovation by finding common grounds to integrate economic and environmental interests.
February 6, 2012
What Kind of Constitutional Design is Optimal for Environmental Governance?
The New York Times recently published an article (see "‘We the People’ Loses Appeal With People Around the World") highlighting a fascinating study of the U.S. Constitution's influence over constitutional design in other countries. The study, a piece of empirical legal scholarship titled "The Declining Influence of the U.S. Constitution" by David Law and Mila Versteeg, analyzes the provisions of 729 constitutions adopted by 188 countries from 1946-2006. In 1987, Time magazine detailed that over 160 out of 170 countries in the world maintained constitutions modeled either directly or indirectly on the U.S. Constitution. Even so, during the 1980's and 1990's democratic constitutions started becoming increasingly distinct from the U.S. Constitution, and "[t]he turn of the twenty-first century . . . saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II." Even Supreme Court Justice Ginsberg recently stated that she would not look to the U.S. Constitution as a model if drafting a new constitution today.
The article cites numerous reasons for the declining influence of the U.S. Constitution on constitutional design. One reason in particular stands out, and raises a question about what kind of constitutional design is most appropriate for environmental governance - the difficulty of amending a constitution. Sanford Levinson has argued that "the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today." On the other hand, some other nations "routinely trade in their constitutions wholesale, replacing them on average every 19 years."
The ability or inability to readily amend a country's constitution has important implications for environmental governance, particularly in federal systems where the constitution may allocate regulatory authority to different levels of government. In many countries, regulatory authority over environmental governance of all kinds is allocated to all levels of government in a dynamic manner - to both national and numerous subnational governments (from states/provinces on down to local governments). Yet in some federal systems, while much environmental governance may be described as dynamic in nature, a dualist structure remains in certain areas whereby environmental regulatory authority over particular resources or issue areas may be divided in an exclusive manner between national and subnational governments. Take Canada, for example, where the constitution contains explicit language granting exclusive regulatory authority over subnational forest policy to the provinces - read, no federal government input allowed. This is a significant state of affairs since the Canadian provinces actually own or otherwise control 84 percent of the nation's forests (see here for a more involved discussion of the below analysis). Interestingly, both Justice Ginsberg and the president of the Supreme Court of Israel, Aharon Barak, indicated that the Canadian Charter of Rights and Freedoms, adopted in 1982, serves as a superior model of constitutional design to the U.S. Constitution. Yet when it comes to the potential re-allocation of environmental regulatory authority between national and subnational governments, the Canadian model presents some serious problems. Canada is on pace to lose over eleven million acres of boreal forest over the next fifty years due to agricultural conversion and urbanization. While the provinces may very well take action to prevent this eventuality, in the absence of provincial action the federal government has little recourse to coordinate subnational forest policies via regulation - and indeed even voluntary cooperative efforts by the federal government have failed to affect subnational forest policy in Canada as the provinces vigorously guard their autonomy over forests.
So what if Canada wanted to re-allocate regulatory authority to allow greater national inputs into subnational forest policy? The Canadian Constitution, I would argue, may present a more intractable amendatory/"federal regulatory authority" state of affairs than even the U.S. Constitution. The Canadian Constitution has only been amended ten times since Canada officially received the power to amend its own constitution from the British in 1982. Though Canada has a formal amendment procedure, it was not unanimously agreed to by the provinces because Quebec voiced resistance to its legitimacy. In fact, some have described the rules governing constitutional amendment in Canada as a “failure.” Not only is the legitimacy of the amending procedures called into question, but it is exceedingly difficult to pass an amendment that effectively binds the provinces. An amendment to reallocate authority over forest policy, for example, would require approval of two-thirds of the provinces, including at least fifty percent of the population. But once passed, provinces may opt out merely by passing a resolution opposing the amendment within one year. In addition, an amendment fails altogether if the amendment procedures are not finalized within three years of the beginning of the process, which may allow ever-shifting changes in political will, increasing opposition, and election-driven changes in the provinces’ political make-up to lead to amendment failures. Finally, since 1982 proposed constitutional amendments in Canada have nearly uniformly sought to grant more power to the provinces relative to the national government. As a result, it would be both politically difficult to persuade the provinces to divest their current explicit constitutional authority over forest policy on 84 percent of Canada’s forests and perhaps legally insufficient to do so if some provinces opted out. So while Canada might provide an attractive alternative in some aspects of constitutional design, it may not always be so in the context of particular mechanisms of environmental governance. Indeed, because of the more stringent brand of constitutional decentralization in Canada, at least with respect to environmental issues, the U.S. Constitution may sometimes be seen as superior in design. The Canadian national government does not contain any power similar in strength and flexibility to the U.S. Commerce Clause that allows, for example, a strong national-level endangered species act - a state of affairs that is often lamented by Canadian scholars.
The difficulty of amending a constitution is really only a problem if issues arise regarding how authority over environmental subject matter is initially allocated - or in the case of the U.S. and the Commerce Clause, how the judiciary has developed its body of constitutional law over time (the U.S. judiciary granting greater environmental powers to the federal government under the Commerce Clause). Of course when the U.S. Constitution was drafted, our understanding of environmental issues was bleak, and the judiciary has indeed expanded interpretation of constitutional provisions to grant greater federal authority to the U.S. government - in stark contrast to the weak power of the Canadian federal government in some areas. Yet even in the U.S. the remnants of dual federalism remain. Though the U.S. has a robust federal endangered species law, private forest management, for example, remains a "land use" regulatory role still largely viewed as the constitutional purview of state and local governments, creating a similar potential restriction on the U.S. federal government over subnational forest policy as that seen in Canada (though far less concrete, as the Commerce Clause may be interpreted broadly and there are no explicit constitutional provisions related to forestry as there are in Canada). Ultimately, the difficulty in amending the U.S. Constitution may be a good thing in the context of endangered species (especially in the current political climate), as federal authority is already well solidified, but not such a good thing in the case of U.S. and Canadian subnational forest policy. And it seems clear, to me at least, that given the proper allocation of authority at the outset, a constitution being difficult to amend might in some cases provide more robust protections for the environment, especially in the developing world, since environmental protection provisions would not change on the whim of the government every 19 years, or whenever the economy dips, and so on.
As J.B. Ruhl has pointed out, it seems clear that explicit constitutional environmental rights and protections are not necessarily desirable, despite continued normative scholarly arguments to the contrary. As a result, the quality of constitutional design in the environmental governance context is often an issue of allocation of governance authority (in addition to, of course, the political will of a government to act on that authority - outside the scope of this discussion). Therefore, in the environmental governance context we should engage in nuanced assessment of all of the relevant variables when making claims about the relative values presented in the constitutional design of certain countries. Because when it comes to certain forms of environmental governance, like national-level protection of endangered species, the U.S. Constitution may not be so bad after all.
- Blake Hudson
February 5, 2012
In Case You Missed It: Week of January 29- February 5
A new study published in Nature Climate Change shows that long-distance ocean currents are warming faster than the globe’s oceans as a whole (The Register).
Endangered Coho Salmon appear to be having an unexpectedly good spawning season in Northern California (SF Chronicle).
On the other coast, the Atlantic Sturgeon was added to the endangered species list (Washington Post).
Environmental and consumer groups say that the Department of Energy's proposed new energy efficiency standards for distribution transformers fail to adopt new technology and sacrifice billions of dollars in savings (ACEEE press release).