Saturday, March 3, 2012

In Case You Missed It -- Week of February 26 - March 3

  • Chicagon, Midwest Generation, and the Chicago Clean Power Coalition announced an agreement to shut down old coal-fired power plants.
  • The EPA issued a number of proposed rules that would approve state implementation plans to reduce regional haze.
  • A New York Supreme Court upheld a localty's zoning ban on fracking.
  • The D.C. Circuit held oral arguments on challenges to the EPA's GHG endangerment finding.
  • The U.S. District Court for the Southern District of New York dismissed a suit by organic farmers against Monsanto for failure to meet the case-or-controversy requirement; the suit sought protection from patent infringement suits by Monsanto against farmers whose crops inadvertently acquire trace amounts of patented seeds or traits.

March 3, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 1, 2012

Water Rights & A Seat at the Table

Next week, the Oklahoma Law Review will host a symposium on water law.  The topic is timely because Oklahoma is reaching the conclusion of a multi-year, stakeholder-driven water planning process.  The process includes both technical evaluations and an elaborate public engagement component.  The latter is worth a closer look for its lessons in collective environmental decisionmaking.

A few features of Oklahoma are notable for their importance to stakeholder engagement processes—I highlight them here because I suspect at least some of these features are shared by a number of states.  First, Oklahoma is a state where trust in the government is moderate to low and there tends to be a strong culture of individualism.  Second, water issues are both legally complex and contentious.  The water-rights system is a blend of riparianism and prior appropriation (yes, this produces bizarre results); there are numerous tribal claims to water; Texas is growing rapidly and getting thirsty; and the list goes on.

Mindful of these features, the Oklahoma Water Resources Research Institute (OWRRI) developed a process meant to engage any interested party from the outset.  It began with 42 listening sessions held across the state.  Next, 340 appointees participated in regional input meetings; these meetings were intended to identify the full range of Oklahoma’s water issues.  Based on an analysis of the issues developed at those meetings, OWRRI identified 10 themes for planning workshops, each of which involved 20 participants.  Resulting recommendations were the focus of a town hall meeting at which policy recommendations were drafted.  From there, OWRRI conducted a number of feedback meetings to allow public input.  Ultimately, the result is a plan developed by the Oklahoma Water Resources Board, which is currently under consideration by the state legislature.

There is no doubt that the process included many and varied ways for the public to raise concerns about water policy in the state.  Furthermore, updates from the OWRRI are easy to obtain, its website contains a wealth of information, and the staff are particularly patient and approachable.  In many ways, the process is a model for deliberative decisionmaking… except…

It didn’t include a meaningful way for Native American tribes to work with the state on a sovereign-to-sovereign basis.  To be fair, the relevant state agencies don’t have authority to negotiate with the tribes in that manner.  But while tribal leaders and state officials seem to agree that water-rights issues are best resolved through negotiation, litigation and heated exchanges appear to be on the rise.  Which might belie the importance of accommodating many voices in the first instance.

--Emily Meazell

March 1, 2012 in Current Affairs, Law, Water Resources | Permalink | Comments (2) | TrackBack (0)

Spotted Owls, Critical Habitat, and Odd Executive Behavior

On Tuesday, the Department of the Interior released its proposed critical habitat designation for the northern spotted owl (press coverage here).  The designation covers a potentially large area, the spotted owl is, of course, a pretty high-profile species, and some of the proposed protective measures are pretty interesting.  Still, this would all be pretty standard ESA fare, but for one odd little twist.

Accompanying the proposed designation is a memorandum, released by the White House's Office of the Press Secretary and signed by Barack Obama himself, essentially reminding the Secretary of the Interior of Executive Order 13563, which was the centerpiece of the administration's deregulation push last year.  Here's how the memo describes the executive order:

Executive Order 13563 requires agencies to tailor 'regulations to impose the least burden on society, consistent with obtaining regulatory objectives' (emphasis added). Executive Order 13563 also requires agencies to 'identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice' while selecting 'those approaches that maximize net benefits.' To the extent permitted by law, our regulatory system must respect these requirements.

The memo goes on to direct the Secretary to consider and exercise his ability, under section 4 of the ESA, to consider economic impacts when crafting a critical habitat designation, and describes several specific ways the Secretary could use that authority, and thus comply with EO 13563.  All involve reducing the geographic extent of the designation.  The memo also directs the Secretary to quickly issue the economic analysis for this designation, and to amend the agency's regulations so that in the future designations and economic analyses are conducted concurrently. According to the memo, that concurrent publication also will promote efficient regulation.

There are several curious things about the substance of the memo.  Initially, it seems to reflect a presumption that critical habitat designations impose major economic burdens on regulated entities.  That may be conventional wisdom among those regulated entities, but, given the normal practices of the services, the accuracy of that wisdom seems a little dubious.  Similarly, any savings generated by not listing critical habitat may be ephemeral.  Limiting the scope of the designation may reduce short-term costs by curtailing protection of the species, but the species then is likely to be threatened or endangered for longer, which sounds like regulatory deflection or postponement rather than relief.

But the real question is: why bother?  The president (or OMB) doesn't need to write a memo, let alone release it to the world, to let the Secretary of the Interior know about EO 13563, or ESA section 4, or even the Administration's general preferences for habitat designations.  The White House does have telephones and other alternative mechanisms of communication, and it seems probable that the Secretary of the Interior would take the call.  Instead, releasing this document is purely an act of political theater, like releasing a symbolic ESA signing statement for the national audience. 

And does that audience actually care?  Of all the political issues currently captivating the country, the designation of critical habitat for the northern spotted owl seems a rather odd subject for this level of executive attention.  Long ago are the days when the Stanford Band could get itself banned from the state of Oregon by performing in the shape of a spotted owl, and the region seems to have long ago become accustomed the the reality of extensive ESA-based protection of its forests.  But the White House apparently feels differently.

- Dave Owen

March 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Environmental law and spatial analysis

LayersA few years ago, I participated in a retreat for a large interdisciplinary research project involving lots of economists and environmental scientists.  As they talked about their work, I was struck by how many of them were running quantitative analyses of data generated from satellite photos or remote sensing.  Crunching spatially coded data, it seemed, had become standard operating procedure in other environmental fields, as routine to ecologists and environmental economists as searching Lexis or Westlaw is to lawyers.

Once I noticed this trend, it seemed to be everywhere.  Local, state, and federal agency websites now are filled with spatial data and with new forms of electronic mapping.  Environmental groups use spatial mapping and modeling in all sorts of innovative ways (interesting examples here and here).  And the non-legal environmental literature is now filled with studies that rely on the same kinds of spatial analysis techniques my colleagues were using.  It made me wonder: what does this mean for environmental law?

My attempt to answer that question is here.  The paper has a lot of detail, but the short summary is that even though environmental lawyers haven’t written much about these advances, they could mean quite a lot.  They can help us understand problems we previously couldn’t wrap our minds around, thus making legal solutions possible in areas where they previously were unworkable.  They can and sometimes should change our regulatory instrument choices.  They also can change the ways different agencies and different levels of government communicate and coordinate, and that non-governmental stakeholders and members of the public participate in environmental decision-making. 

Rob's mapAll that positive potential comes with a big caveat.  The outputs of electronic mapping and spatially explicit simulation modeling projects can seem seductively persuasive, particularly when those outputs combine the seeming authority of precise numbers with the visual appeal of bright colors.  Users can easily forget that that those outputs are hardly ever quite as precise or accurate as they appear, and can rely on models at the expense of common sense.  As environmental modelers sometimes say, no one believes the raw data but the field scientist, and everyone believes the model except the modeler.  But despite that dangerous potential, there are a great many ways in which spatial analysis is changing environmental management, often, potentially, for the better.  It’s a trend we lawyers have to grapple with, and that offers some exciting opportunities for the advancement of environmental law.

There are also potentially significant implications for environmental research.  In recent years, we’ve seen the rise of empirical legal studies, with an increasing number of legal researchers relying on statistical analyses of empirical data.  For the most part, empirical legal scholars have focused on databases that aren’t geographically coded, but that could change.  Spatial databases include all sorts of information that could be of interest to legal scholars.  In response to the rise of empirical legal studies, many law schools have strengthened their ties with their universities’ economics department or with statisticians, sometimes even bringing that expertise in-house.  Perhaps the next step is to create similar ties our GIS labs.

-Dave Owen

(second image courtesy of Rob Lilieholm, Alternative Futures Research Project, University of Maine)

March 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 29, 2012

Ecosystem Services in Federal Guidance

On October 5, 2009, President Obama issued Executive Order 13514, which provides a unique opportunity for Federal agencies and facilities to improve sustainability across their operations. Among other things, Executive Order 13514 calls for the implementation of sustainable construction practices in federal buildings, as well as water conservation and pollution prevention in the operation of federal facilities.  Since that time, several federal agencies have developed guidance to assist in achieving sustainability in governmental operations, from greening the federal fleets to encouraging cycling opportunities

In furtherance of Executive Order 13514, on October 31, 2011 the Council on Environmental Quality (“CEQ”) issued Guidance for Federal Agencies on Sustainable Practices for Designed Landscapes (“Guidance”) for the following purposes:

The recommendations in this document describe goals and strategies to achieve sustainable outcomes rather than specifying prescriptive solutions and technology. They are intended to inspire flexibility, innovation, and a culture change. They apply equally to new construction, major renovations, and existing sites and to a lesser extent alterations to existing small scale landscaping efforts. The recommendations accommodate regional differences and can be adapted to support diverse agency missions and policies.

The Guidance addresses the reduction of impacts to soils, water, vegetation, human well-being, and cultural landscapes from facilities construction, operations, and maintenance.  CEQ sought the assistance of the United State Botanic Garden (and others) due to their experience in developing the innovative Sustainable Sites Initiative

The significance of the Guidance might be measured in terms of federal assets, which include more than 41 million acres of land and 3.34 billion square feet of building space in the United States.   Perhaps more notable, however, is the effort to “inspire flexibility, innovation, and a culture change” by integrating ecosystem services values into the proposed decision making framework.   This, I imagine, is intended to heed Gretchen Daily’s observation: “Unless humanity is suicidal, it should want to preserve, at a minimum, the natural life-support systems and processes required to sustain its own existence.”

- Keith Hirokawa

February 29, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 28, 2012

The Latest Legal Development in Spain's Renewable Energy Sector

Over the past five years, Spain has been a story of renewable energy boom and bust.  Spain implemented a generous feed-in tariff for renewables in 2007.  In that year, Spain’s solar/PV capacity increased five-fold, and Spain quickly became a world leader.  In 2008, Spain was host to roughly 50 percent of all global solar installations.  A similar boom occurred in wind energy development.  Over the next few years, Spain modified its feed-in tariff to be less generous and to contain a cap on new capacity.  The sector experienced some degree of bust because of regulatory uncertainty, but many installations still occurred.  By 2010, about 20% of Spain’s electricity came from wind and solar (and 20% more from hydro) (see graph below from the link above).

Spain renewables

The latest chapter of this story, Royal Decree-Law 1/2012, happened a few weeks ago. The newly elected, more conservative government ended all subsidies for new renewable energy installations effective in 2013.  The law has been justified as an austerity measure to address what is referred to in Spain as the “tariff deficit,” the difference between that the amount that utilities have to pay to acquire and deliver electricity and the amount that they are legally allowed to collect from electricity consumers. But national environmental groups and other supporters of renewables have come out strongly against the new law.  They argue that renewable energy contributes significantly to Spain’s economy and wealth – with jobs, contributions to GDP, reductions in imported energy, reductions in CO2.  In addition, Spain’s renewable sector had become a world leader, and Spain has accumulated a base of experience and knowledge that should be built upon.  They also suggest that new law goes against EU Directives 2009/28/EC and 2010/30/EU, which establish mandatory renewable energy usage targets for 2020.  And they say that the government is blaming the rise of electricity costs on renewables, but that other factors are likely to be more important and will make electricity prices continue to rise.

- Lesley McAllister

February 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

China Environmental Experiences #2: Rocky Mountain Arsenal

As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)

But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.ELPB 2 RMA - RMA 2009 (Oborseth)

As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.

After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.

But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.

A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)

Several students traveled with me on congested area highways on days when I was overcome with the fumesELPB 2 RMA - Fushan on Good Air Day of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.ELPB 2 RMA - Fushan on Bad Air Day

Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.

Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?

I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.

In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”

My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”

Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).

The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.

But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.

Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.ELPB 2 RMA - NRL Class

--Erin Ryan

February 27, 2012 in Air Quality, Asia, Biodiversity, Food and Drink, International, Sustainability, Toxic and Hazardous Substances, Travel | Permalink | Comments (4) | TrackBack (0)

Obama's Environmental Conservation Ethic Giving Way to Severe Conservatism?

A few weeks ago, Mitt Romney was mocked by many for labeling himself “severely conservative” (see here, here, and particularly here for examples).  While lately we have seen much focus in the media over the efforts those vying for the Republican nomination as they run to the right, another story about political positioning is not getting nearly as much attention as it deserves:  President Obama’s race to secure the political middle.

One way that story might be told is a month or so ago, Obama stood with environmentalists—at least begrudgingly so—in opposing efforts to fast-track the Keystone XL Pipeline, which would run from Canada to Texas.  Of course, TransCanada Corp. did not give up so easily.  As it pivoted from that political loss, the company settled on a strategy of building the southern portion of the pipeline in short order (which is less controversial and would run through Oklahoma and Texas).  Apparently this segment of the pipeline would provide relief to an oil-production bottleneck in Cushing, Oklahoma.  And, here is why this is newsworthy; today the Obama White House publicly stated that it would support that segment of the pipeline.  His endorsement of this pipeline segment is an indication that, as in many other contexts, the President will ultimately abandon environmental protection.

In an election year, one would expect that a Democratic president would run to the political middle.  Over the past few years, we have seen that when the Obama Administration needs to find middle ground, the pathway to that middle ground is often through bartering away or abandoning environmental protections.  Examples of this are many.  Perhaps the most striking though are the Administration's willingness to cut the EPA's budget to end conflicts with Congress about funding the federal government and the Administration's decision to walk away from stricter ozone regulations this past fall.  As President Obama positions himself for his reelection bid, I fear that his rhetoric about environmental conservation will give way to severe conservatism.

-- Brigham Daniels

February 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 26, 2012

In Case You Missed It - Week of February 19-25

February 26, 2012 | Permalink | Comments (0) | TrackBack (0)