Monday, April 29, 2013

Welcome to Professor Robin Craig!

We are very glad to welcome Professor Robin Kundis Craig to Environmental Law Prof Blog.  Robin completed her doctorate in English literature at UC Santa Barbara and her law degree at Lewis & Clark.  Before entering academia, she worked for the Natural Resources Section of the Oregon Department of Justice and clerked for U.S. District Judge Robert Jones. She is presently the William H. Leary Professor of Law at the University of Utah S.J. Quinney School of Law.
 
While first and foremost a water law guru, Robin also has great expertise in property law, civil procedure, administrative law, toxic torts, and environmental law generally.  She is the author or co-author of four books – Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (2012); Environmental Law in Context (3rd ed. 2012); Toxic and Environmental Torts (2010); and The Clean Water Act and the Constitution (2nd ed. 2009) – and she is working on a new water law casebook, Modern Water Law, with Professors Bob Adler and Noah Hall, due out in June 2013.  She has also published over 50 law review articles and book chapters.

Given Robin’s broad expertise and prolific writing, we are delighted to have her in our ranks this summer!

- Lesley McAllister

April 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, April 26, 2013

Supreme Court Reaffirms Agency Discretion in Interpreting Regulations

The following was authored by Eric Lorber and reposted from RegBlog, with the permission of Cary Coglianese.

When federal agencies impose regulations on businesses, who decides what those rules actually mean?  In a recent decision, the Supreme Court said that agencies do.

LoggingIn Decker v. Northwest Environmental Defense Center, the Court examined whether the Environmental Protection Agency (EPA) reasonably interpreted its regulations when concluding that permits were not required under the Clean Water Act to discharge storm water runoff from logging operations. The Court – ruling that the EPA’s interpretation was reasonable – affirmed the principle that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is plainly erroneous or inconsistent with the regulation.

The dispute in Decker arose following the actions of logging and paper-product companies in Oregon. Under a contract with the state, Georgia-Pacific West and other logging companies harvested timber from a state forest using graded roads to transport the timber. When it rained, water from those roads – often filled with sediment, dirt, and crushed gravel – ran off into nearby rivers and streams.

In September, 2006, the Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon, alleging that the logging companies caused discharges of storm water runoff into two waterways and had not obtained the necessary permits to do so under the Clean Water Act. 

The District Court dismissed the action, concluding that the discharges were permissible, but the Court of Appeals for the Ninth Circuit reversed.

The Supreme Court granted certiorari to address the question of whether the EPA’s interpretation of its own regulations – that permits are not required for discharges from storm water runoff from logging roads– was reasonable.

The Clean Water Act requires a permit if storm water runoff “associated with industrial activity” is discharged into navigable waters. The EPA, the agency responsible for enforcing the Clean Water Act, issued regulations defining “associated with industrial activity” as only those discharges “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” The EPA later interpreted storm water runoff from logging roads as excluded from this definition.

In a 7-1 decision, the Court sided with the EPA, concluding that the agency’s interpretation was reasonable and therefore entitled to deference under a previous Supreme Court decision in Auer v. Robbins.

After noting that jurisdictional issues did not preclude the courts from hearing the case, the Court turned to whether the EPA’s interpretation of “associated with industrial activity” was reasonable.

First, relying on the general rule enunciated in Auer that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation,” the Court concluded that while the term “industrial” can refer to business activity in general, the term also might apply more narrowly to the manufacture of goods in factories, which does not include outdoor timber harvesting.

Second, the Court determined that the EPA’s interpretation that the regulation extends only to traditional industrial activities was rational and therefore permissible.

Finally, the Court concluded that the EPA “could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive,” given the backdrop of extensive state regulation of storm water runoff from logging roads

Although the Court acknowledged that the EPA’s interpretation might not necessarily the best one, it noted that the interpretation was consistent with the regulation and therefore entitled to deference.

Justice Scalia, disputing the majority’s deferential approach, argued in dissent that the Court should not grant such discretion to federal agencies. He asserted that Auer should be reconsidered because no persuasive justifications exist for affording federal agencies both deference in creating regulations and interpreting them. In its place, Scalia suggested the Court should instead determine whether the agency’s interpretation of the regulations was the most fair.

The Court – refusing to endorse Scalia’s arguments limiting agencies’ interpretive discretion – reversed the Ninth Circuit and remanded the case for proceedings consistent with its opinion.  

Justice Stephen Breyer did not take part in the decision because his brother, a judge in the United States District Court for the Northern District of California, sat on the Ninth Circuit panel that had decided the matter under review.

(reposted by Lesley McAllister)

April 26, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 25, 2013

A Water Quality/Fish Passage Controversy Reaches Closure

River_herring_2Last week brought closure to a rather interesting legal controversy at the northeastern corner of the country.  The St. Croix River, which forms part of the boundary between Maine and Canada, once supported millions of alewives (also known as river herring).  Dams and pollution decimated alewife runs throughout the northeast, but by the mid-1990s, the St. Croix run had partially recovered.  That recovery alarmed local fishing guides, who blamed the alewives for declining smallmouth bass populations.  In response to these concerns, Maine enacted legislation requiring closure of a key fish ladder.  With the ladder blocked, alewife populations again declined precipitously.

This second decline eventually led to both litigation and legislative activity.  On the litigation front, the Conservation Law Foundation, a regional environmental group, began by suing EPA.  CLF argued that the state’s actions constituted a de facto amendment of water quality standards for the St. Croix, and that EPA was obligated to review that change.  That suit culminated in an EPA letter to the state of Maine, in which EPA concurred in CLF’s position.  But the state initially brushed off the letter, and it appeared that CLF would need to file another lawsuit to compel state action.  CLF did file that lawsuit, but the suit raised a host of jurisdictional issues, some of them quite thorny.  As thoroughly explained here, bringing lawsuits to compel compliance with water quality standards is no easy matter.  Those jurisdictional issues now have been briefed but not yet addressed by the court.

Now, however, those same issues are moot.  The state legislature recently passed a bill requiring the reopening of the fish ladder.  The legislation had broad support: Native American tribes and commercial fishing interests joined environmentalists in support of the bill, while only a few fishing guides remained opposed.  That alone was no guarantee of gubernatorial support.  Maine’s governor spent part of last week speaking at an anti-Agenda 21 rally, and when it comes to pro-environmental legislation, all bets are currently off.  But even if he could not bring himself to sign the bill, the governor also declined to veto it, and last week the bill quietly became law.

So why should anyone outside of an obscure corner of Maine care?  There are three main reasons.  First, this controversy highlights intriguing questions about EPA’s obligation to review state actions that serve as de facto amendments of water quality standards.  Many state actions arguably could meet that description.  Installing a board in a fish ladder, and thus preventing fish migration through a river system whose designated uses include supporting native fisheries, seems like an obvious example.  But what about approving subdivisions that alter stormwater runoff in ways that damage water quality?  Could that require EPA approval as well?

Second, the litigation, had it proceeded, would have compelled the courts to confront some interesting questions about the enforceability of water quality standards.  And those theories in turn would have implicated basic questions of federalism.  For example, the plaintiffs’ most plausible source of a cause of action might have been the U.S. Constitution’s supremacy clause.  And the United States Supreme Court recently raised, without resolving, questions about whether such a cause of action exists.

Finally, and perhaps most importantly, the ecological benefits of this recovery project could be substantial.  Alewives are the anadromous equivalent of rabbits; they reproduce in astonishing numbers, and just about every predator that lives in northeastern river systems or the near-shore ocean eats them.  Right now, they’re under consideration for ESA listing, but a recovered population could help New England’s iconic, and beleaguered, groundfishery bounce back.

-Dave Owen

April 25, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 23, 2013

A Child's Perspective on the European Crisis

Following Dave’s lead and apropos to Jonathan Zasloff’s commentary at Legal Planet on UCLA's tobacco ban, here is a funny tidbit from my 6 year old daughter.

As we drove to school a couple days ago, we were listening to an NPR story about the economy.  The reporter was summing up the situations of various regions of the world.  As to Europe, the reporter said something like “Europe doesn’t look great either.”

Now my daughter knows a thing or two about Europe.  We lived in Spain last year for 6 months.  From the backseat, she speaks up in a very deliberate and confident voice:

“Of course Europe doesn’t look great -– there are cigarettes all over the ground!”

- Lesley McAllister

April 23, 2013 | Permalink | Comments (0) | TrackBack (0)

The New (Old) Euclid. The More Things Change, the More They Stay the Same.

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This past week I took a trip to Toronto via Cleveland (long story) to attend the Urban Forests, Political Ecologies Conference (which was a truly fantastic conference). In addition to seeing the Cuyahoga River for the first time (a river that makes its way into every intro to environmental law course), I got to IMG_1603 drive through the city of Euclid, Ohio. I felt as if I was living in a case book! Euclid, as many of you know, became famous in the case of Euclid vs. Ambler Realty, where the Supreme Court, for the first time, upheld a municipality's authority to enact zoning regulations. These regulations were ultimately an exercise of the police power intended to preempt nuisance claims by separating well-recognized nuisances (like industry) from those who might bring claims. Well, as I traveled down the main drag back toward the interstate, what filled the windshield of my car but one of the largest windmills in North America. That's right, Euclid was at it again. Innovating. From the same grid upon which modern zoning was built, you could now view a growing source of alternative energy in the U.S. I snapped a picture, shown to the right, and as you can see this is no slight change to the Euclid skyline (it appears, however, that Euclid has not mandated underground powerlines through its zoning power).

The mayor of Euclid hopes this is the beginning of Euclid's renewable energy revolution, and Euclid has indeed followed up by placing solar panels on city buildings. The turbine is poised over Lincoln Electric's headquarters and is expected to cut a half a million dollars from Lincoln's annual electric bill. Of course, just as with complaints about zoning regulations in 1926, the city has received complaints about the turbine obscuring views of Lake Erie. But overall, residents seem quite happy with the attention the windmill brings, and with the potential for future investment in windmill manufacturing for a region in great need of re-investment in growth industries. 

Of course, the case of the city of Euclid provides an interesting metaphor for the broader intersection between zoning and renewable energy. As Professor Troy Rule has explored in many fine articles, municipalities may often use zoning authority to keep renewable energy projects out of their municipal limits. In this way, the city of Euclid provides a wonderful example of a city embracing such projects - and not just a project on the fringe of the city limits, but one that can be seen from pretty much any street in downtown. Hopefully more municipalities will embrace Euclid's vision of what is not a nuisance in a time when renewable energy is in need of major adoption across the 88,000 or so subnational governments across the nation. And maybe they can do something about those powerlines too.

- Blake Hudson      

April 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Introducing Todd Aagaard

We’re happy to introduce our newest blogger.  Todd Aagaard attended the University of Michigan’s School of Natural Resources and the Environment and Michigan Law School, where he was the editor-in-chief of the Michigan Law Review, and clerked for Judge Guido Calabresi.  He then spent eight years at the United States Department of Justice, where, last I checked, his former colleagues are still in mourning over his departure.  He now is an associate professor at Villanova, where he teaches and writes on a variety of environmental law topics.

Todd will be joining us for a three-month stint, which is part of a series of changes coming to the blog.  In the future, we anticipate that some of our editors will remain indefinitely, while others will rotate through for shorter visits.

-Dave Owen

April 22, 2013 | Permalink | Comments (1) | TrackBack (0)

On the Lighter Side

This afternoon, out of the blue, my four-year-old daughter said, "Daddy, today is Earth Day!"

"Oh," I said.

"I told kids at school about pollution.  But I didn't have time to talk about you."

"What did you tell them about pollution?"

"Pollution is..."  she paused.  "Pollution is... endangered species!"

Let's all hope.

-Dave Owen

April 22, 2013 | Permalink | TrackBack (0)

Saturday, April 20, 2013

China Environmental Experiences: Table of Contents

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China.  A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays.  That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in ChinaIMG_300 ER teaching at HaiDa A (111611) “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

China Environmental Experiences #2: Rocky Mountain Arsenal.  “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….”

China Environmental Experiences #3: Breathing Air with Heft.  “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…” Beijing CBD view on July 23 2011 Smog over 400 PMI (Smog) Beijing CBD view on July 26 2011 Smog over 60 PMI (Clear)

China Environmental Experiences #4: Wifi Without Potable Water.  “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….” 

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…” 

CEE #6: Environmental Philosophy and Human Relationships with NatureLaoshan Mountain 036“In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity.  “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #8: Environmental Protection as an Act of Cultural Change.   China Sept 2011 400“This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”

CEE #9: Post Script: Returning from China to the U.S.   “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

--Erin Ryan

Shanghai Jade Buddha Temple, World Financial Center, Bund 070

April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)

Wednesday, April 17, 2013

The Reliability of the Sun and the Wind

The electric utility industry often complains that renewable energy proponents don’t pay enough attention to the intermittency of renewable resources.  A common refrain is “the sun doesn’t always shine and the wind doesn’t always blow.”  The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy.

A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on.  In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy.  The scenario includes no coal-fired generation.

The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that’s needed for sophisticated grid operators to balance supply and demand – namely, several hours ahead of time.  It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches.

So it seems we can build electric power systems that bank on the reliability of the sun and the wind.  A new refrain could be “the sun’ll come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun!” and we can recall that our forebears didn’t name places Windy Mountain, Windy Plains, and the Windy City for nothing. 

- Lesley McAllister

April 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 16, 2013

Inappropriate for Class?

Perhaps I should not admit it, but I used the picture below in my environmental law class this semester. I showed it after we had had a pretty heavy discussion on the science of climate change, with the thought that it might bring some levity to an otherwise difficult topic. While no one suggested it was inappropriate, I later found myself regretting it. A female professor might get away with it, but I think a male professor could really catch some flack!

 

-Lesley McAllister

April 16, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, April 15, 2013

A Happy Fiftieth Birthday to Dugan v. Rank

Fifty years ago today, in Dugan v. Rank, 372 U.S. 609 (1963) the United Supreme Court did something it has not done since: it issued a decision in a takings case involving water allocation. 

That statement might seem surprising.  The Court has decided many takings cases in the last five decades.  Those decisions have addressed wetlands (Palazzolo), floodplains (Dollan, First English), lakes (Tahoe Sierra Preservation Council), and, with particular frequency, beaches (Nollan, Lucas, Stop the Beach Renourishment).  This past term, a flooding case and a wetlands case both occupied the docket.  The Court, in short, has shown no lack of interest in water.  And in that same period, water allocation controversies have produced a tremendous amount of litigation, some of it involving the takings clause.  But not one of the resulting cases has found its way to the Supreme Court.

Is this a problem?  Ten years ago, many water lawyers would have said so.  In the absence of guidance from the Supreme Court, takings plaintiffs pressed some rather aggressive theories about how the takings clause should apply to regulation of water rights.  Most notoriously, in Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), they argued, successfully, that a regulatory restriction on water use should be analyzed as a physical taking.  The case, and a host of copycat claims, created a fear, widely shared among the many people (including me) who strongly believe in government regulation of water use, that caselaw at the intersection of water rights and takings was in danger of turning seriously astray.  And in the wake of the Court’s Tahoe-Sierra Preservation Council decision—and with Justice O’Connor the likely deciding vote—the Supreme Court seemed like a promising forum for those seeking a change in course.

Now, however, the picture looks different.  In surface water cases, the Tulare Lake case has never gained a following.  Only one other decision (Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed.Cir. 2008)) has adopted a physical takings framework for a regulatory restriction, and that decision involved a rather complicated and unique fact pattern (and the plaintiffs still eventually lost).  In groundwater cases, I recently discovered, courts have uniformly rejected that more categorical approach.  Many questions remain about the application of takings doctrine to water use allocation, and some academic debate lingers, but most courts at least seem to be moving toward a view that the regulatory takings doctrines the Court has developed for land will serve equally well for water. 

If that trend continues, there may be little need for Supreme Court intervention.  So, on the fiftieth birthday of Dugan v. Rank, perhaps water lawyers can raise a toast to judicial restraint, lack of interest, fear of the complexities of water law, or whatever else it is that has kept water rights out of the Supreme Court.

-Dave Owen

April 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Better Block Baton Rouge - Because Riding a Bicycle in Town Shouldn't be Deadly

BBBR_Plan_labelsLast Saturday I had the pleasure of attending the Better Block Baton Rouge event on Government Street here in Baton Rouge. As you can see from the attached images, it was a lively "demonstration project . . . exploring possibilities for transforming the corridor into a vibrant and safe destination for pedestrians and cyclists, while maintaining quality road design that optimizes traffic flow and access to businesses." I bike to work, about 7 miles each way. It takes roughly the same amount of time as driving, I do not have to pay for campus parking, and when I get home I am done with my exercise for the day. I do not ride on the main corridors here in Baton Rouge, however, because it is so very dangerous. As the Louisiana Center for Planning Excellence reports, while Baton Rouge is the worst city of its size in America for traffic congestion, Louisiana has the worst drivers in the nation and ranks 49th (second worst) for bicycle and pedestrian fatalities. Louisiana is also the fifth most obese state in the nation. Thus, a city with a great need for more cycling also happens to be one of the more dangerous cities in which to cycle.

Programs like Better Block BR are crucial to raise awareness of what our streets could look like if they were re-designed to take into account a broader suite of societal values than the status quo: more walkable, cycle-able cities, aesthetic benefits, improved traffic flows, greater access to community amenities, environmental benefits, health benefits, among a variety of other positives. I applaud the mayor's office and other organizers for putting on this program and certainly will be looking for opportunities to help Baton Rogue become a more bike and pedestrian friendly city. My life and the lives of many other cyclists may depend upon it.

- Blake Hudson

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April 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

Workshop Classes

Yesterday, I enjoyed discussing a new paper I've written about solar subsidies with Professor Ann Carlson’s Climate Change and Energy Law Workshop class at UCLA.  In past years, I’ve participated in similar workshop classes at Georgetown and Stanford, but this one worked particularly well because the students were required to write substantial comment papers. I received their comment papers several days before my visit, and they were generally well written and helpful.  During the class, I tried my best to answer all their great questions.  

I wonder if this type of class could be successful using virtual visits.  Ann mentioned that the students really enjoy the opportunity to engage in peer-like communication with professors on cutting-edge academic work, but the travel costs of ten presenters (most from far away places) make it an expensive course for a law school to run. It certainly wouldn’t be as fun for us profs (I really enjoyed dinner afterwards!), but could students still get a lot out of it?

- Lesley McAllister

April 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 11, 2013

An Article Worth Reading

On Tuesday, the New York Times published an article that all academics--particularly new ones--probably should read.  The article discusses the increasing presence of so-called "predatory" academic journals and conferences.  According to the Times, these journals and conferences generally adopt names that sound respectable and legitimate, but their peer review processes are minimal, and they often hound authors for exorbitant and undisclosed fees once they've agreed to publish.  They also solicit articles aggressively, which may explain the odd-sounding conference and publication invitations I routinely receive. 

Among other reactions, the article made me appreciate some things about the much-maligned system of publication through law reviews.  The placement process may be the polar opposite of double-blind review, and the absence of peer review sometimes allows shoddy work to appear in prominent places (of course, I doubt peer review fully prevents that from occurring).  But at least when we are asked to participate in a law review's symposium, we don't have to wonder what sort of institution the invitation is coming from.  And when we get publication offers, we can be pretty confident that the people working on our article will be striving to make it better and learning something from the experience, not attempting to gouge money from us or our institutions.

-Dave Owen

April 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Weather, Climate, and Birthday Parties

I took my daughter to a birthday party for one of her school friends last weekend, and I got in a discussion with the birthday girl’s dad about climate change.  It started when the dad said something like “if weathermen can’t even predict the weather tomorrow, how can scientists say anything about climate change.” 

Of course, this wasn’t the first time I had heard such a remark.  But I felt good about the effectiveness of my response, so I thought I’d share it.  It went something like this (please note that I don't claim originality; I'm sure I heard it elsewhere but I don't know where):

"Consider a coin toss.  If I ask you to bet me $1,000 that the toss will come up heads, how confident would you feel about winning the bet?   (Not very.)

Now consider 1,000 coin tosses.  If I ask you to bet me $1,000 that about half of the tosses will come up heads, how confident would you feel about winning the bet?  (Pretty good.)

One coin toss is like predicting the weather.  A thousand coin tosses is like predicting climate. Climate prediction is based on many measurements over many locations over many years."

I doubt I changed his mind about climate change, but I think he appreciated the point.  Also, it felt like the right level of conversation for that social setting.  Perhaps my daughter will still be invited to his daughter’s birthday party next year!

- Lesley McAllister

April 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 4, 2013

Water, Whooping Cranes, and the ESA

Three weeks ago, a federal district court in Texas issued an important ESA decision.  The Aransas Project v. Shaw also is a very long decision—124 pages, to be exact—so I’ve been a bit slow to get a blog post up.  Despite its daunting length, the case is important reading for anyone interested in water management or the ESA.  It’s also a rather intriguing case study of the use—both successful and badly botched—of expert testimony in environmental litigation.

Whooping cranesThe case arises out of water management controversies in Texas.  According to the plaintiffs, the Texas Commission on Environmental Quality and its fellow defendants had taken whooping cranes in violation of section 9 of the Endangered Species Act.  They had done this, the plaintiffs argued, by allowing excessive water withdrawals from the river systems that feed into the Aransas National Wildlife Refuge, which provides vital whooping crane habitat.  The court agreed, enjoined the issuance of new water permits, and ordered the defendants to prepare a habitat conservation plan and seek an incidental take permit.

That’s a very interesting outcome, because successful section 9 actions against water managers don’t seem to be particularly common.  I haven’t done any sort of rigorous survey, but my impression, based on working as a water lawyer and then on my academic research into related ESA questions, is that environmental groups have gained much more leverage through ESA section 7.  Indeed, in the Southeast’s longstanding Apalachicola-Chattahoochee-Flint controversy, similar take claims brought against upstream water managers failed.  See Alabama v. Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006).

So could this case signal the emergence of a new front in the ESA/water allocation wars?  My suspicion is that several factors will make these plaintiffs’ success difficult to replicate.  In no particular order, those factors are:

The extraordinary level of data available to the plaintiffs in this case.  Reading the opinion made me wonder if these whooping cranes are one of the most carefully observed wild animal populations on earth.  As the court describes, scientists have been counting whooping cranes since the 1950s.  Since the early 1980s, scientists—including one of the plaintiffs’ experts—have conducted dozens of monitoring flights every year.  The resulting level of information is exceptional.  Usually population biologists must rely on some combination of observational data (usually limited), proxy indicators like habitat conditions, and computer-based modeling to assess the status of a population.  The resulting uncertainties can limit plaintiffs’ ability to demonstrate causal relationships with enough certainty to support a successful ESA section 9 claim.  With whooping cranes, the circumstances are quite different.

The imbalance of experts.  The plaintiffs had an impressive array of experts on their side.  Here’s the court’s description:

At trial, TAP presented seventeen witnesses, ten of whom were experts, GBRA eight; SARA one: and TCEQ two.   As will be discussed in more detail later, TAP’s experts were world renowned in their respective fields.  Several of TAP’s witnesses hold endowed chairs at prestigious universities, some are MacArthur Fellows, all have published numerous scientific papers in respected journals.  Indeed, one witness, Dr. Ronald Sass, is a shared recipient of the 2007 Nobel Peace Prize for his environmental work.  TAP’s crane experts… have years of study in the field and have devoted their time and energies to the survival of the AWB species.  All of TAP’s experts were accepted as such and the Court finds their testimonies compelling and credible.

The court had less laudatory things to say about the defendants’ experts.  For example:

Dr. Slack did not personally spend any significant amount of time in the field, averaging one day per year over the past fifteen years.  Contrary to the scientific literature, Dr. Slack testified that cranes did not need freshwater because they had functioning supraorbital salt glands which allowed them to secrete excess salt.  However, when questioned further by the Court, Dr. Slack admitted that he had no observational basis for this statement, he had not reviewed literature on cranes and freshwater, and that he “just made it up.” (record citations omitted)

The level of judicial interest.  From the outset, the narrative structure of the opinion (yes, it does have a narrative structure) strongly suggests that someone in the court’s chambers cared very deeply about this case, and probably also about whooping cranes.  Before getting into the procedural history, relevant law, or even the identities of the parties, the opinion spends several pages describing the whooping crane die-off, much like a detective novel beginning with the key murder.  But the real tip-off comes later, in a remarkable passage debunking the work of one of the aforementioned Dr. Slack’s graduate students:

[A key defense report] used a report by Dr. Slack’s graduate student Danielle Greer whose conclusions to the preferred food of whooping cranes was (sic) based on 90 plus hours of video of three crane areas.  The Court watched all of the videos and finds that they were either too blurred to see anything or non-demonstrative of any habit, feeding or otherwise.

So what does this all suggest?  If I’m reading correctly, it shows that when plaintiffs have extraordinarily good monitoring data, an all-star team of experts, poorly prepared experts on the other side, and a judicial chambers where someone—perhaps the judge, more likely a clerk—cares so deeply that she is willing to watch 90 hours of blurry footage of whooping cranes, they can win an ESA section 9 case against upstream water managers.  Absent those circumstances, the challenge might be a bit harder.  That doesn’t mean there won’t be other cases like this.  Conflicts between water withdrawals and the needs of endangered fish and wildlife probably aren’t going away any time soon.  But the case does illustrate the level of scientific and legal work necessary for plaintiffs to prevail.

-Dave Owen

April 4, 2013 | Permalink | Comments (4) | TrackBack (0)