Monday, May 27, 2013

Big trucks aren't the problem. Big trucks that run on fossil fuels are the problem.

Let's be honest. Whether it is a Hummer or a Prius, a truck/car is a terribly inefficient way to transport a human body. To use a 3000 pound (Prius) or 6600 (Hummer) pound vehicle to transport a single or a few human bodies that weigh at most a few hundred pounds is just a bad use of energy - unless, of course, that energy is entirely renewable. Bicycles, on the other hand, are by far the most efficient tools for transporting a human body through space and time. See more info here, and this chart demonstrating a bicycle's dominance in translating energy into transportation:

I like cycling. I bike to work for a number of reasons. It helps me (attempt to) stay in shape, I don't have to pay for parking at work, and it only takes me five minutes longer than it would to drive/sit in traffic, which in and of itself can be maddening. But I am from Alabama, and currently live in Louisiana - there are a lot of trucks in both places. Chevy Silvarados and Ford F-150's abound. While it is easy to be critical of gas guzzling Gulf Coasters - and indeed many owners of such trucks have them only for style or similarly uncompelling reasons - often there is a genuine need for a vehicle of the type. Whether it be for use on a farm, or in my case, a forest with hills that are virtually untraversable without the use of a 4 wheel drive vehicle, trucks provide utility beyond considerations of energy efficiency.  

The problem, to state the obvious, is the fuels we use in all of our vehicles. A Californian who commutes 250 miles a week in a Prius that gets 50 mpg emits more vehicle-based carbon than the Louisianan who drives 90 miles a week in a Ford F-150 with a V-6 ecoboost engine that gets 22 mpg, but who bikes to work. Then there is the person who drives a Prius 90 miles per week and bikes to work, and the person who lives near public transportation and does not own a car. Ultimately, the choices we make regarding our transportation of choice facilitate our ability to be more or less carbon intensive, but only within a small range. In other words, in a fossil fuel driven world, any transportation that relies on a vehicle that weighs more than a ton to transport bodies weighing only a fraction of the total weight has significant carbon impacts, though the person driving the "gas guzzler" may be vilified and the person driving the Prius viewed as environmentally responsible.

Enter the future, and solar powered homes, and plug-in 4x4 trucks. In the future, perhaps our drawing fine distinctions between two terribly inefficient transportation options will be a thing of the past. Everyone will be using electric powered vehicles powered by a resource that will (or should) be with us for at least the next 5 billion years - the sun.

Take this guy, who helps identify where the real source of green angst should be directed (apologies for the advertisement before the video commences. A link to the video is here if the embed feature does not work): 


So it is not the monster truck that should be vilified, but the monster truck that runs on fossil fuels that should be frowned upon. The fuel source should be the real source of environmentalist angst, not the machine that carries the person. The Prius owner should not look down upon the F-150 4x4 driver, but they all should be working toward moving away from that terrible fuel source that creates such ultimately silly artificial divisions on the highway. Of course, batteries in electric vehicles give rise to a host of environmental problems. But I hope that one day recyclable batteries made out of renewable cellulosic biofuel material, housed in Priuses and 4x4's all around the country, and charging from the energy of the sun, will allow the Prius owner and the 4x4 owner to drive separately, one person per car, to the Monster Truck rally (or NASCAR race), where they can sit beside each other, watch "Silent Foot" crush the gas guzzlers of the past, and listen to the cars crunch much more clearly than their ancestors ever could.

- Blake Hudson

May 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 22, 2013

Dam Futures

Glen canyon dam imageA standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams.  And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries.  Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics.  Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence.  As former Secretary of the Interiror Bruce Babbitt once put it, “we overdosed.”  We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements.  But, in the standard narrative, the removals aren’t coming nearly fast enough.

I agree with this story, and most of the underlying facts aren’t really in dispute.  But another narrative of dams lingers on, particularly — but not exclusively — in the reports of the government agencies that manage much of our hydropower.  In this story, hydropower remains an essential part of our energy mix.  Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher).  While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables.  For a few key reasons, that 7 percent is also particularly useful.  First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States.  Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve. 

Hydropower’s share also could grow.  Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has  approximately 80,000 non-hydropower dams).  How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or—dare we hope—a price on carbon could make expanded hydro look much more economically appealing.   In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future.  And this narrative is not just idle storytelling.  In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower.

Penobscot diagramWe often think that our energy needs inevitably will conflict with environmental protection, and these two narratives might on their face seem to reinforce that view. But is the tension between these narratives unavoidable?  The answer, perhaps surprisingly, is "not always," and a case study illustrates the possibilities.  On the Penobscot River in Maine, an ambitious dam removal project is currently underway.  Once completed, the project (which I’ve blogged about here, and which is described in more detail here, here, and here) will involve multiple dam removals and fish passage improvements on the dams that remain.  Hundreds of miles of river habitat will be opened to the river’s many anadromous species — fish that breed in freshwater, but spend most of their lives in saltwater — and scientists anticipate exponential increases in their populations, with benefits for both freshwater and saltwater ecosystems.  All of this will happen without any loss of hydropower.  By moving and upgrading facilities, Black Bear Hydro LLC, which owns the dams, will be able to sustain its present generating capacity.   Both the upgrades and the environmental improvements arose out of one big negotiated deal, with environmental groups and the Penobscot Indian Nation essentially offering support for what otherwise would have been contentious license renewals (as well as a substantial financial payment, which some of the groups helped raise) in return for the environmental improvements.  In short, on the Penobscot, environmental improvements and hydropower efficiency upgrades were closely, and legally, linked.

Great works 1 Great works 2








The Great Works Dam site, before and after.

Could that be repeated?  Physically, it seems possible.  Most river basins in the United States contain multiple dams, and trading removals or improved fish passage in some locations for energy upgrades in others seems like a sensible step.  But the legal challenges are substantial.  On most rivers, many different entities own the dams, creating a significant coordination challenge, and public governance of watersheds is famously fragmented.  As anyone who has worked with FERC licensing knows, renewing even a single license is a long and difficult process, and linking multiple licensing processes together sounds like a formidable task.  Consequently, the legal challenges are daunting.

But are they insurmountable?  I don’t yet know.  But over the next few months, I’ll be taking a close and careful look at hydropower law to try to figure these questions out.  The research project goal, ultimately, is to identify legal reforms that will allow our hydropower system to sustain or increase its benefits while reducing, hopefully substantially, the environmental burdens it imposes.

-Dave Owen

Glen Canyon Dam image from; other images courtesy of the Penobscot River Restoration Trust.

May 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 21, 2013

Auction Results in California Cap and Trade

The California Cap and Trade Program’s third auction was held last Thursday 5/16/13, and the results were released today.  I’ve been watching the auction results to see what clues they offer as to whether California’s program will suffer from the suite of problems associated with overallocation (low allowance prices, delayed emissions reductions, and large allowance banks).

Overallocation, however, really only becomes clear in retrospect.  Indeed, it is precisely the unknowns of the future that make overallocation hard to avoid.  There might be a recession that reduces allowance demand, or there might be solid economic growth.  There might be technological change that reduces allowance demand (fracking, for example), or not.  Economic change and technological change are just a couple of the exogenous factors that have contributed to overallocation in past programs (others include weather fluctuations, the success of legal challenges, etc.). 

Yet there are hints to be gleaned from the results of allowance auctions.  One can look at whether the allowances are selling for more than the reserve price.  They didn’t for several years in the Regional Greenhouse Gas Initiative (RGGI), but a reform in February to tighten the cap have led to slightly higher allowance prices (latest auction results here).  In California, they are, and the third auction looks better by this measure than did the second (see the Settlement Prices below).  One can also look at the extent to which the auction is oversubscribed or not.  RGGI’s auctions have often been undersubscribed.   In this latest Claifornia auction, there were almost double the bids for allowances (1.78 times) than there were allowances. But this is down from California’s February auction, in which there were almost two and a half times (2.47) more bids than available allowances.  Notably, all three of California “advance auctions,” which sell allowances that cannot be used for several years, have been undersubscribed (see below).  These advance auction allowances have always sold at the reserve price ($10 in 2012, $10.71 in 2013).

I do think there is some "early overallocation" in California’s program, meaning that program caps are above business-as-usual (BAU) emissions in the early years.  Indeed, an analysis by Energy GPS (discussed here) finds that the 2011 emissions of the entities regulated by California’s cap and trade program were about 12% lower than the 2013 cap (140.8 mmtCo2eq emitted, as compared to the 2013 cap of 160.4 mmtCo2eq).  The analysis further forecasts that the 2013 cap will be about 8% higher than 2013 emissions.  Whether overallocation becomes a real problem for the California program (as it has not just for RGGI, but also for the EU Emissions Trading Scheme), will depend on many factors, several of which are out of California's control.        

- Lesley McAllister 


Allowances Offered

Allowances Sold

Settlement Price


Current Auction

(2013 Vintage)





Advance Auction

(2015 Vintage)





Current Auction

(2013 Vintage)





Advance Auction

(2016 Vintage)






Current Auction

(2013 Vintage)





Advance Auction

(2016 Vintage)




May 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 14, 2013

On NEPA and Duplicity

A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents.  I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation.  Judging from a followup email John sent this morning, I wasn’t the only one.  In a short time, it seems, he’s compiled a long list.

But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute.  I know I’m not the only one.  In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes.   The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts.  The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action.  Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal.  Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.

Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness.  After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners).  Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business.  The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents. 

I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic.  “Don’t ever underestimate,” he told me, “how much we fear that public reaction.”  For him, that fear was also leverage.  The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl.  I doubt his situation was unique.  So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.

-Dave Owen

May 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Standing in Recent Environmental Cases

On Wednesday (May 15), the Environmental Law Institute is hosting a lunchtime seminar on The Future of Standing in Environmental Cases, with a great panel: 

I hope that the panel addresses what I regard as one of the most interesting recent developments in standing cases:  the number of significant environmental cases in which the D.C. Circuit is finding that industry plaintiffs lack standing.  Environmentalists and environmental law scholars have often regarded rigorous standing requirements as biased against citizen environmentalist plaintiffs.  See, e.g., Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 465-73 (2008).  Indeed, the Supreme Court has essentially admitted as much, noting that plaintiffs who are the target of government regulation generally satisfy standing requirements, whereas establishing standing for other plaintiffs is "substantially more difficult.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).  But many of the recent significant environmental cases in which plaintiffs have lost on standing grounds involve industry plaintiffs:

  • Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), held that states and industry groups lacked standing to challenge EPA’s Timing and Tailoring Rules.
  • Nat'l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir. 2012), held that the National Chicken Council, National Meat Association, and National Turkey Federation lacked standing to challenge an EPA rule interpreting a provision in the Energy Independence and Security Act of 2007 regarding renewable fuel credits.
  • Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), held that engine manufacturers, food suppliers, and petroleum suppliers lacked standing to challenge EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines.
  • Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge findings by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River in southern Arizona are “waters of the United States” and therefore within the jurisdiction of the Clean Water Act. 
  • Nat’l Ass’n of Home Builders v. Army Corps of Engineers, 663 F.3d 470 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge the Army Corps of Engineers’ Nationwide Permit 46 authorizing discharges of dredged or fill material into certain non-tidal ditches.
  • Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011), held that the U.S. Chamber of Commerce and National Automobile Dealers Association lacked standing to challenge EPA’s decision granting California a waiver from federal preemption of vehicle emission standards under Clean Air Act § 209.

This pattern of losses for industry plaintiffs does not appear to reflect a new development in standing doctrine; each of these decisions relies on well-established standing principles.  This makes me wonder whether this string of industry losses is a coincidence, or has some underlying common cause.  For example, are industry plaintiffs seeking judicial review more aggressively or expansively?

I am equally interested in seeing whether, if this pattern continues, environmentalists and environmental law scholars will soften their skepticism about standing doctrine.  Of course, the obstacles encountered by industry plaintiffs in establishing standing are not necessarily the same as those encountered by environmentalist plaintiffs, and so one can take a principled position that courts have interpreted standing doctrine too stringently as applied to losing environmental groups but correctly as applied to these losing industry plaintiffs.  But it does seem to me that, these days, the results in standing cases seem somewhat less disproportionately against environmentalist plaintiffs.

--Todd Aagaard

May 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 8, 2013

LSU Law Center Launches New Laborde Energy Law Center

Energy Law Center

In a bit of shameless self-promotion of my home institution, I wanted to highlight that LSU's Laborde Energy Law Center has now been officially launched. You can check out the new website here. The Center was made possible in large part by a gift from LSU Law graduate John P. Laborde, who graciously gave the largest gift to the law school in its history. The Laborde Center will have many missions, but its academic programming will focus in large part on providing students practical training and experiential learning opportunities in the area of energy law prior to graduation, including (but not limited to): field trips to energy facilities to learn about the regulatory compliance and other obligations of those industries; white papers informing the broader legal community of timely energy and environmental legal issues; a speaker series with prominent speakers from both the state of Louisiana and nationally; a concentration program in energy law with expanded energy and environmental course offerings; collaboration with the newly formed LSU Journal of Energy Law and Resources to put on a yearly symposium; development of networking and internship opportunities for students in the energy law field; development of robust interdisciplinary curricular and experiential learning opportunities with programs on main campus (such as Geology, Petroleum Engineering, Nuclear Sciences, Coastal Sciences, Environmental Science, Business, and Chemical Engineering).

We are very excited about the center and hope that it will be a resource that the broader energy and environmental law communities can turn to for expertise in the field. Below is the vision statement of the Laborde Energy Law Center:

The twenty-first century presents no challenge to Louisiana, the United States, and indeed the global community greater than that of producing and distributing energy in an effective, safe, equitable and environmentally sound fashion.  To meet this challenge, decision-makers in both the private and public sectors increasingly must rely on attorneys with a sophisticated understanding of the energy industry and the legal and regulatory framework with which the industry operates, in Louisiana and beyond.  In recognition of this need, the LSU Law Center has created the LSU John P. Laborde Energy Law Center that will serve as a leading focal point for educating highly skilled attorneys deeply grounded in the law, business and science of twenty-first century energy in all of its manifestations.

Legal and regulatory issues surrounding the energy industry have become increasingly complex and specialized over the past 30 years as new forms of energy have emerged and regulation of the energy sector has increased. In this context, the demand for legal professionals with a broad, deep and interdisciplinary background in energy law will only grow more pressing. To meet this demand, the Energy Law Center will work to provide superlative preparation for “client ready” attorneys ready to meet the needs of our State and the broader national community.

The Energy Law Center will provide an integrative, multidisciplinary approach to energy law specialization that will complement and add to cutting-edge thinking about legal education.  Our graduates pursuing specialization in the energy sector will be “prepared for practice” and ready to assist with complex projects involving teams of interdisciplinary professionals in the energy industry.

The interdisciplinary mission of the Energy Law Center will provide an additional link between LSU Law and other LSU campuses and disciplines, such as geology, geophysics, biology engineering, and finance.  The Center will also provide new opportunities to build relationships with other interested organizations in the state and across the nation.

Fundamentally, there is no state that is more appropriate for housing such a center, no state in greater need of a comprehensive Energy Law Center, than Louisiana, and no law school better positioned to foster such a center than LSU Law.

- Blake Hudson

May 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 7, 2013

Call for Papers: "Stuck in Forward?" due May 15

Below is a Call for Papers that inspires critical, big-picture thinking.  Among the possible topics, conference organizers have included the following environmentally-related ones:

  • Population and shifting demographics—opportunities and rhetorical strategies
  • Capture and the regulated state
  • The economy, class and energy policy
  • Class, race, climate change and the environment
  • The contracting state, private governance and the emergence of a new feudalism?
  • The dysfunctional corporate food sytem


ClassCrits VI: Stuck in Forward? Debt, Austerity and the Possibilities of the Political

Sponsored by Southwestern Law School & U.C. Davis School of Law, Los Angeles, CA, November 15-16, 2013

Excerpt from the Call for Papers:

"What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics? How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts. Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order."

Proposal Submission Procedure and EXTENDED Deadline 

Please submit your proposal by email to by May 15, 2013.  Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words.  Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.”

See the full Call for Papers and Presentations for more information about this year’s themes and topics.

- Lesley McAllister

May 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 6, 2013

A Law Review Submissions Dilemma

Recently, one of my colleagues faced a dilemma involving submissions.  Two months ago, he agreed to publish an article in a top specialty journal.  It was late in the submission season and he was somewhat naive about the process, so he didn't realize any journals might still be considering the article, and he didn't withdraw the submission from other law reviews.  To his surprise, a top law review recently expressed interest.  What to do?

I'm curious how other colleagues (and law review editors) have handled this situation.  Of course, the best answer is to avoid the situation entirely by withdrawing your submission everywhere else immediately upon accepting a journal's publication offer.  But that clearly doesn't alert every journal--most years, I get a few rejections, and occasionally an inquiry, from journals I withdrew from weeks earlier--and I've heard of two other instances where this situation arose.  In both, the initial offeror retained the article.  But I'm wondering if that's a typical resolution.

- Dave Owen

May 6, 2013 | Permalink | Comments (0) | TrackBack (0)