Thursday, September 26, 2013

Chaired Position in Law, Constitution and Society, University of Missouri-Kansas City School of Law

The University of Missouri - Kansas City (UMKC) School of Law is seeking nominations and applications for the Edward A. Smith/Missouri Chair in Law, the Constitution and Society.  The School is especially interested in applicants with strong backgrounds in Environmental Law, State and Local Government Law, Urban Law, or Property Law.   It is expected that the holder of the Chair will make significant contributions to student learning and scholarship, and will be an active leader in bringing creative solutions to the legal and social problems of the wider community.  The Chair was established in honor of Edward A. Smith, whose distinguished career exemplified the use of law as a tool for shaping a better society.  

 The School of Law was founded more than 100 years ago and is located in the beautiful Country Club Plaza area of Kansas City, a diverse metropolitan area of more than 2.3 million people.  The School provides its approximately 500 students with a comprehensive, affordable legal education supported by a collaborative and dedicated faculty, uses a personalized admissions process, and enjoys strong community and alumni support.  The School is housed in a technologically sophisticated building on a landscaped and vibrant campus.  The UMKC School of Law is the only law school in Kansas City, and is one of two law schools in the University of Missouri system.

Nominations and questions may be directed to Professor Doug Linder, LinderD@umkc.edu, (816)235-2375.  To apply, please submit an application through http://www.umkc.edu/hr/career-opportunities/default.asp

 Applicants should submit a cover letter, CV, and other materials the applicant wishes to be considered, before October 15, 2013.  Applicants who are not U. S. citizens must state their current visa and residency status.

The University of Missouri-Kansas City recognizes that a diverse faculty, staff, and student body enriches the educational experiences of the entire campus and the greater community.  To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and to making every attempt to support their academic, professional and personal success.

The University of Missouri-Kansas City is an Affirmative Action, Equal Opportunity Employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.

--Deepa Badrinarayana

September 26, 2013 | Permalink | TrackBack (0)

Wednesday, September 25, 2013

Waiting for the Stormwater Rule

Storm drainLast week, E&E News reported a breakdown in talks over EPA’s long-delayed stormwater rule.  In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012.  That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a new timeline.

The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system.  There are several key reasons for those challenges. 

First, urban stormwater problems generally arise from the combined runoff of very large numbers of properties.  That makes an individual permitting approach, which has been quite successful for discharges of industrial and wastewater treatment plant effluent, hard to use; writing permits for millions of landowners probably isn’t administratively or politically feasible.  Urban stormwater therefore requires alternative regulatory structures, but coming up with effective ones hasn’t been easy.   

Second, stormwater raises some interesting federalism issues.  Many of the most promising solutions involve land use planning, and regulation of land use has long been the third rail of environmental law (I’ve argued elsewhere that it shouldn’t be, and that federal law can be a positive influence on local land use decision-making, but the political realities remain challenging).  The Clean Water Act and EPA’s existing regulations dance around that challenge, at least to some extent, by requiring medium and large municipal stormwater systems—known in CWA parlance as MS4s—to serve as the National Pollutant Discharge Elimination System (NPDES) permit holders for the systems they manage.  That obligation creates a semi-cooperative federalism scheme, in which municipalities must regulate the private and public properties that discharge into their systems.  But in my conversations with municipal stormwater managers, I’ve heard a lot of frustration with that system.  They generally feel that their obligations are ambiguous; that it’s unfair for them to bear those obligations while less developed areas remain outside the permitting program; and that, even if the obligations were more clearly defined, they just don’t have the money to put a more robust regulatory program into effect.

As that last complaint suggests, lurking behind all these challenges are cost issues.  Those issues don’t apply to all stormwater regulation. In fact, minimizing stormwater impacts in an undeveloped watershed actually can be quite cost-effective, even if one ignores the harder-to-value environmental benefits that cost-benefit analysis often excludes.  Many of the best fixes involve integrating vegetated spaces into landscaping and consolidating development—in other words, doing many of the things that smart growth advocates have promoted for a variety of other sensible reasons.  Consequently, a stormwater-sensitive development can actually be a very nice place to live or work.  But compelling that sort of development would push EPA further into the realm of land use planning, where, for issues related to politics and federalism, it may be reluctant to go.  Instead, the Clean Water Act’s regulatory structure focuses on waterways that already are impaired and on landscapes that already are developed.  There are obvious benefits to that approach: among others, developed watersheds typically have more people, less anti-regulatory politics, and higher-value real estate, which means more of a constituency for watershed restoration and more money to support it.  But it also means focusing on some of the most expensive fixes.

This all leaves EPA in a bind.  In its settlement, it made the following commitments (in addition to many others not directly related to the stormwater rulemaking):

By September 30, 2011, EPA will propose a regulation under section 402(p) of the Clean Water Act to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites.  As part of that rulemaking, EPA will also propose revisions to its stormwater regulations under the Clean Water Act to more effectively achieve the objectives of the Chesapeake Bay TMDL.  In developing the proposed rule, EPA will consider the following elements related to stormwater discharges both nationally and in the Bay watershed: (1) additional requirements to address stormwater from newly developed and redeveloped sites; (2) requiring development and implementation plans by MS4s to reduce loads from existing stormwater discharges; and (3) explanding the definition of regulated MS4s.  EPA will take final action by November 19, 2012.

That all sounds sensible, and many stormwater managers would agree that these are important next steps.  But they also involve ratcheting up pressure on municipalities and extending EPA further into the role of regulating new development.  Neither step, at present, is an easy sell.

Nevertheless, in this arena, as in many regulatory arenas, there are promising innovations that might alleviate a bit of the difficulty.  One example comes from the city where I teach.  Portland, Maine is currently in the process of developing a stormwater fee program.  The fees will be pro-rated to the amount of impervious cover owned by each landowner, with reductions available to landowners who take steps to reduce the impacts of their stormwater runoff.  In the short term, that funding will provide city managers with a pool of money they can use to address combined sewer overflows and other major stormwater challenges.  It also will generate that money equitably, with people and entities who contribute a larger share of the problem contributing more to the solution, but with everyone—small landowners included—chipping in.  In the long term, the city hopes that the persistent pressure of an economic signal can change the ways people develop, redevelop, and manage their land.  If it works, the program could demonstrate that urban stormwater is a more tractable problem than people have traditionally thought, and that the increased regulatory controls that EPA may yet seek actually can be implemented in ways that are equitable, efficient, and, ultimately, successful.

Portland’s story also highlights a potential role for those of us who teach environmental subjects, including law.  According to the municipal staff I’ve talked to (in Portland and other surrounding cities), one of the biggest challenges of local stormwater regulation is education.  They may care quite deeply about environmental quality, but most people just don’t understand urban hydrology, stormwater pollution, or stormwater law, and they’re often baffled by proposed regulatory responses.  For a city implementing a stormwater fee program, one of the largest challenges is public education.  But teachers can help.  I suspect urban stormwater occupies a minor place in most environmental law syllabi, and studying the ecology of urban environments has not been ecologists’ traditional focus.  But if we spend even a little more time teaching about urban water quality, we’ll educate our students about a very important public policy issue—and an issue to which many people, both in and outside of the legal field, devote many hours, billable or otherwise, every day.

- Dave Owen

 

September 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

Call for Applications: University of Hawaii Law, Director of Environmental Law Program

You can see the full application description here.

And here is a summary of the position duties and responsibilities:

The successful candidate will be a full time member of the tenured or tenure track faculty and will direct the Law School’s Environmental Law Program. His or her primary teaching, scholarship, and service responsibilities will center on the areas of environmental and administrative law. As Director of the Environmental Law Program, the successful candidate will oversee the Law School’s certificate program in Environmental Law, and develop and manage the Program’s curricular and extra-curricular initiatives relating to environmental law and policy. Environmental law is conceived broadly to include natural resources law, wildlife law, environmental law, land use law, and other subjects bearing on environmental sustainability at the local, regional, national, and international levels.

- Blake Hudson

September 23, 2013 | Permalink | TrackBack (0)

Tuesday, September 17, 2013

Greetings and Welcome!

Many thanks to Blake Hudson for inviting me to join the Environmental Law Profs blogging crew for the next few months. As many of you already know 2 or 3 of you may know, I blog regularly (err... lately maybe irregularly is the better term) over at Land Use Profs. I love the land use gang, but often feel like a bit of interloper because of my lack of land use cred. I plan to continue my blogging there but hope to use this forum to discuss intriguing issues that don't fall as squarely into the land use box.

I'd like to take this chance in my first post, however, to welcome all the new environmental law professors joining our ranks this year. Last year, Kalyani Robbins worked with a research assistant to gather information about environmental law professors across the United States. While Kalyani and I never quite got around to writing the article that we planned regarding the results, one remarkable thing was clear -- there are a lot more environmental law professors out there than people realize. Moreover, there is a big category of untenured folk. The research identified 510 environmental law professors, with 101 untentured tenure-track faculty. This number does not include those junior scholars out there who have not yet entered the tenure track, like folks currently on the market, people working as VAPs, fellows, etc. One of the things we realized during our research and discussions into these issues, is that many of these junior scholars toil away in solitude -- not always having funding to travel to conferences or having good guidance about making connections and finding colleagues. 

In an attempt to at least create some virtual connections, a few of us created a listserv for junior environmental law and land use scholars (plus we have some property and indian law folk chiming in periodically). This smallish community can serve as a good sounding board for silly questions, arranging meet ups at conferences, and getting to know each other. It is not a replacement in any way of the superior (and much larger) listserv managed by John Bonine (if you are an environmental law scholar and not on that listserv, you should get on it -- email John). I think I was teaching for a year before I even knew about that listserv...

Anyhoo.... at the beginning of this new school year, I would like to invite junior faculty (and faculty hopefuls) to join our list by dropping me a line (jol@buffalo.edu). If you have a junior environmental law person at your school,  take a minute to point them to these listservs (and this blog! I think I was teaching for a year before I even knew about John Bonine's listserv.

For those of you with tenure, consider volunteering to read a junior paper or two each year. To facilitate these paper exchanges (which we run through the listserv), simply fill out this survey.

Thanks!

Jessie Owley

 

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

Getting to 3.2% in Fracking

The New York Times today reported potentially encouraging news from a collaborative study out of the University of Texas:  methane leakage rates from hydraulically fractured shale gas wells might be lower than previously estimated EPA rates.  The study emerged from a combined effort of gas companies, the Environmental Defense Fund, an independent Scientific Advisory Panel, and academics.  It finds that methane emissions from the flowback process--when hydraulic fracturing fluid and some gas (methane) flows back out of the well--range from 0.1 Mg to 17 Mg (with a mean of 1.7 Mg of methane released and "75% confidence bounds of 0.67-3.3 Mg"), as compared to previous EPA estimates of an average of 81 Mg per flowback event.  Emissions from pumps and other equipment at well sites, on the other hand, are "comparable to and higher than" EPA estimates.  In total, methane emissions from activities at the wellhead might represent "0.42% of gross gas production."  These findings are important because organizations like EDF believe that methane leakage rates from the rapidly-growing shale gas resource must be 3.2% or lower for gas to provide a climate advantage over new coal-fired power plants. 

But we are not out of the weeds yet.  This EDF, university, and industry-led study is only one of approximately 16 studies planned to be published in academic journals by 2014, and the study only addresses leakage at the wellhead.  The amount of methane leakage through the entire natural gas system, from production to "gathering & processing, long distance transmission & storage, local distribution, and transportation," is still a murky number.

In addition to lacking definitive evidence that system-wide methane leakage is below 3.2%, we also must understand the limitations of the wellhead study.  The study makes excellent progress within the methane leakage debate because it measures actual leakage rates from "150 production sites, 27 well completion flowbacks, 9 well unloadings, and 4 workovers," including 489 hydraulically fractured wells in several regions.   But as with any study that must rely on industry cooperation to access data, there is a concern that the researchers measured industry best practices.  It is possible, in other words, that the industry actors most willing to participate in the study were those that already used the best methane capture technology and practices and were least worried about the results.  Indeed, the study notes that the "dataset is designed to be representative of the participating companies' activities and practices, but not necessarily all activities and practices."

It is not yet clear that the EPA-estimated 25,000 wells fractured or refractured each year use methane capture practices as beneficial as the 489 hydraulically fractured wells in the study.  The authors of the Texas-led study indicate that "[m]ultiple methods were used to minimize the potential for bias in the sample set," and they provide a detailed appendix of the study scope and method.  The appendix indicates that "[r]epresentative sampling was believed to be achieved by: [s]electing a large number of companies, [s]electing a range of geographic areas to sample," and "[s]electing [a] minimum number of sampling targets in each area." But the appendix shows that the nine mid-size and large companies that participated in the study "account for almost 12% of all U.S. gas wells," "16% of gross gas production," and "almost half of the new well completions." Although this represents a sizeable chunk of industry, it might also represent the most cooperative and progressive chunk.   There is some indication that not all companies are amenable to the types of methane capture practices used by these companies.  The American Petroleum Institute has complained about the costs of new EPA Clean Air Act rules that will require methane capture or flaring (burning off of gas) similar to the practices used at the 489 wells studied by the University of Texas team.  It worries that the "reduced emissions completion" (REC) technologies necessary to achieve this capture rate will not be available in the numbers needed and will slow down drilling and fracturing. 

We also need to think about the broader climate impacts of gas, as noted by Patrick Parenteau & Abigail Barnes and others. Although we know that the displacement of coal with gas has benefits far beyond (apparent) greenhouse gas reductions, there is the broader threat of what the Natural Resources Defense Council calls a "fossil fuel lock-in" (link is to video archives of a National Research Council presentation by Kate Sinding of NRDC).  The existence of abundant, cheap natural gas threatens to distract us from implementing energy efficiency and renewable energy projects at a rapid rate.  MIT researchers have noted that the focus on gas slows down and in some cases stops innovation in areas like carbon capture and sequestration, and the International Energy Agency reminds us that gas is not enough to meet climate goals like stabilizing global temperature rise to 2 degrees Celsius.  To make real progress on climate issues, we must rapidly invest in fossil fuel alternatives while continuing to achieve systemwide reductions in methane leakage from gas operations.  

-Hannah Wiseman

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

Thursday, September 12, 2013

Welcoming Guest Blogger Jessica Owley

It is our pleasure to welcome Jessie Owley as a guest editor on Environmental Law Prof Blog. 1346279906662
Below is a snippet from her faculty page. Welcome Jessie! 

Jessica Owley teaches environmental law, property and land conservation. She joined the SUNY Buffalo Law in 2010 after serving as an assistant professor at Pace Law School. She received her Ph.D. in environmental science, policy and management from the University of California-Berkeley in 2005, shortly after completing her J.D. at Berkeley Law in 2004.

Before entering academia, Owley practiced in the Land Use and Environment Law group at Morrison & Foerster in San Francisco. Prior to private practice, Owley clerked for Hon. Harry Pregerson of the Ninth Circuit Court of Appeals and Hon. Dean D. Pregerson of the Central District of California. Owley is a member of the California bar and admitted to practice in the Northern, Southern and Eastern districts of California and the Ninth Circuit.

Owley's teaching interests are in the areas of property, environmental law, administrative law and Indian law. Though her general research is on land conservation and property rights, her current scholarship focuses on using property tools for conservation in the context of climate change.

- Blake Hudson

September 12, 2013 | Permalink | TrackBack (0)

Wednesday, September 11, 2013

University of Montana School of Law Tenure-Track Position in Property Law

From the University:

The University of Montana School of Law invites applications for tenure-track Assistant or Associate Professor of Law position teaching Property Law.  The position is a ten-month contract beginning fall semester 2014.  To view full job descriptions, minimum requirements needed, and to apply, go to http://university-montana-hr.silkroad.com/epostings/ADA/EOE/AA/Veterans Preference.

- Blake Hudson

September 11, 2013 | Permalink | TrackBack (0)

GHG Trading and Co-Pollutants: Expanding the Focus

I agree with Dave Owen’s recent post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities.  He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots.  Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.

I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels.  Even if a GHG trading program would not cause an industrial hotspot – would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.

I start by acknowledging Adelman’s valuable insights about industry’s relative role in air toxics pollution.  Because Adelman’s concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry’s absolute and relative contribution to air toxics pollution.  He defines a county-wide industrial hotspot by industry’s absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million.  He defines a census tract industrial hotspot where industry’s absolute contribution to cancer risk exceeds 20 per million and industry’s relative contribution is at least 30% of total air toxics emissions.  Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics.  Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions.  But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.)

Adelman demonstrates that the paucity of industrial toxic hotspots has important implications for GHG trading programs.  First, because mobile and nonpoint sources dominate air toxics pollution in most of the country, GHG trading is unlikely to cause large percentage shifts in communities’ exposure to air toxics.  As Adelman notes (and Dave Owen’s recent blog post highlighted), if industry contributes 10 percent of a locality’s toxic emissions and a GHG emissions program requires a 20 percent emissions reduction, then imposing that reduction requirement directly on the local industries would garner only a 2 percent reduction in toxic emissions.  Thus, a GHG trading program that lets facilities purchase allowances instead of reducing emissions would forego only a 2 percent reduction in local toxic emissions.

A second valuable insight about industry’s limited relative role is that, in most instances, GHG trading is unlikely to increase racial inequities in air toxics exposure. That stems, in part, from industry’s relatively minor contribution to cumulative air toxic risks.  Because trading is unlikely to substantially affect relative levels of air toxics cancer risks, it is unlikely to substantially shift the racial distribution of exposures.  And in the small number of census tracts where industrial emissions do play a substantial role in air toxics risks, he observes that the racial disparities are slight, so that a GHG trading program’s emissions patterns would not lead to increased racial inequities in risk distribution.

Adelman’s analysis addresses key environmental justice concerns about distributional equity.  The analysis does not, however, address one additional issue that is also important to the debate about GHG trading program’s and toxic hotspots: the significance of co-pollutant reductions on absolute pollution levels, even if industrial emissions are not the dominant source of emissions and the trading program would not lead to large percentage shifts in air toxics levels. In other words, one additional issue to consider is the importance of any reductions – even small reductions – in severely polluted areas. In highly polluted areas, the concern is not just whether trading will cause hotspots, but whether trading will eliminate opportunities to achieve incremental reductions in serious cumulative harms.

To identify areas where GHG trading could potentially make a significant difference in toxic emissions and, therefore, affect the relative distribution of pollution, Adelman rightly focuses on industrial hotspots: the counties and census tracts where industrial emissions most affect air toxics levels.  As he notes, however, the focus on industrial hotspots does not correspond to toxic hotspots more broadly, since the nation’s most toxic hotspots are primarily caused by mobile and nonpoint sources, not industrial sources.   He observes that, because “large populations and high population densities” generate high air toxics emissions from mobile and nonpoint sources, they “all but foreclose the emergence of industrial hotspots in metropolitan areas where the cancer risks from air toxics are typically the highest.” (322)  Industrial hotspots typically appear only in places that combine highly toxic industries (generating significant industrial emissions) with small, low density, populations that generate relatively few mobile and small point source emissions. 

Therefore, although assessing a GHG trading program’s impacts on industrial hotspots tells us where a GHG trading program covering industrial sources could have the biggest percentage impact on air toxics emissions, that analysis does not address a trading program’s impacts on areas experiencing the highest levels of air toxics pollution.  To assess the value of achieving co-pollutant reductions, it is important to consider not only the percentage reductions that could be achieved or the distributional equity implications of those reductions, but also the importance of achieving reductions in absolute levels of pollution.

To see this more clearly, imagine two census tracts.  Tract 1 is in a rural, low-density, region.  A steel mill there poses a cancer risk of 20 per million and contributes 50 percent of the census tract’s overall air toxics risk of 40 per million.  Under Adelman’s analysis, Tract 1 would qualify as an industrial hotspot because industrial sources pose a risk of at least 20 per million and industrial sources contribute more than 30 percent of the tract’s overall air toxics risk.  If a GHG reduction program required a 20 percent decrease in emissions, and facilities in that area chose to purchase allowances rather than reduce emissions, then that area would forego reducing cancer risks by 4 per million, forgoing a 10 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 10 percent reduction is calculated as follows: A 20 percent reduction of the 20 per million cancer risk would lead to a reduction in risk of 4 per million.  Reducing Tract 1’s air toxics risk from 40 per million to 36 per million is a 10 percent overall reduction in risk.  Note that, for purposes of explanation, this example is highly simplified and likely exaggerated; it assumes that a facility would purchase allowances rather than reduce emissions and that GHG and co-pollutant emissions are perfectly correlated.)

In contrast, assume Tract 2 is in a dense urban environment that more closely resembles Los Angeles than Tract 1’s rural character.  Assume several industries pose a cancer risk of 10 per million and contribute 10 percent of the census tract’s overall air toxic risk of 100 per million; the other 90 percent of the air toxics risk stems from mobile and nonpoint sources. Tract 2 would not qualify as an “industrial hotspot” under Adelman’s definition because industry contributes less than 20 per million to the overall cancer risk and because industry contributes less than 30 percent to the tract’s overall risk level.  Assuming a twenty percent GHG reduction requirement in Tract 2, and assuming that local industries purchased allowances rather than reducing emissions, Tract 2 would forego reducing cancer risks by 2 per million, foregoing a 2 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 2 percent reduction is calculated as follows: A 20 percent reduction of the 10 per million cancer risk could reduce air toxic risks by 2 per million.  Reducing Tract 2’s air toxics risk from 100 per million to 98 per million is a 2 percent overall reduction in risk.)

Adelman’s analysis of industrial hotspots helps us see that a GHG trading program could make the most relative difference in associated air toxics emissions in Tract 1 because there it could cause Tract 1 to forego a 10 percent emissions reduction, whereas in Tract 2, where industrial emissions are a smaller component of overall emissions, the trading program would cause Tract 2 to forego only a 2 percent reduction.  In Tract 1, there is a greater possibility that the foregone reductions could change that tract’s degree of air toxics pollution relative to other areas, and cause racial inequities to the degree Tract 1 is located in a disproportionately minority area.

These insights address key equity questions, as measured by relative pollution levels.  But a trading program’s role in alleviating absolute pollution levels, not just its impact on relative pollution levels, is also relevant to the discussion of GHG trading and hotspots. The cumulative toxics risk in Tract 2 is 100 per million, substantially more than the 40 per million in Tract 1.  Of course, reductions in both tracts are important, but the 2 percent reduction in Tract 2 could be as or more important than the 10 percent reduction in Tract 1.  Though the smaller percentage reduction in Tract 2 will not strongly affect relative pollution levels and is unlikely to change distributional equity, the reduction could be more important to the impacted communities in Tract 2 than in Tract 1.  The difference in Tract 2 (reducing the cancer risk from 100 to 98 per million) might be less dramatic than in Tract 1 (reducing the cancer risk from 40 to 36 per million), but arguably the need for reductions is greater in Tract 2 than in Tract 1.

Wherever harm is caused by cumulative sources, incremental reductions from any one source, particularly a smaller source, will not lead to substantial changes in overall emissions. But one factor in considering the importance of the reduction is the extent of the need for the reduction, not only the relative change in emissions or its impact on distributional equity.  Residents subject to multiple sources of pollution hope for reductions from all sources, even if the reductions achieved by any one source cannot, by definition, solve the entire problem.  The presence of high emissions from mobile and nonpoint sources should not minimize the value of industrial emission reductions in the most seriously polluted areas.

A focus on the impacts of trading on industrial hotspots provides important insights that contribute substantially to the debate about GHG trading and hotspots, but its limits in fully resolving that debate are revealed by the article’s suggested regulatory fix.  In order to mitigate the risk that a GHG trading program could lead to significant shifts in relative pollution in the limited numbers of industrial hotspots he has identified (most of which are rural, low-density communities where a single industry causes most of the air toxics pollution), he identifies modifications to a cap-and-trade program to reduce the risk of adverse shifts in emissions.  His suggested solution addresses the role of a GHG trading program in causing industrial hotspots.  But it does not address the impact of trading on toxic hotspots that are not primarily caused by industry.  If we are going to modify a GHG emissions trading program to address co-pollutant consequences, should that effort be focused on these areas, rather than the areas experiencing more intense air toxics pollution?  True, protections in industrial hotspots are likely to have a greater relative impact on pollution than they would in areas suffering from many sources of pollution.  But it’s not clear that this approach would target improvement where it’s most needed.

To be clear: I am not suggesting that a GHG trading program or carbon tax should not be adopted because of its co-pollutant drawbacks relative to more direct regulatory measures.  This dialogue concerns only the distributional impact of GHG trading on co-pollutants.  As I have written elsewhere, a full analysis of a trading program’s co-pollutant implications must also consider other dimensions to the choice between market-based and traditional regulation, including relative stringency, relative flexibility, enforceability, participatory opportunities, and other factors, some of which might (or might not) provide counterveiling co-pollutant benefits.  In addition, other benefits of a GHG trading program or carbon tax could potentially outweigh the co-pollutant considerations articulated here.  And, if politically viable (a big “if”), more aggressive efforts to reduce mobile and nonpoint air toxics could be more effective than attempting to achieve co-pollutant reductions through a GHG trading program, particularly if that effort were to adversely impact the viability of GHG control efforts.  I write, instead, simply to add another dimension to the discrete debate about GHG trading and air toxic hotspots: a trading program’s impact on cumulative pollution in the nation’s most polluted areas.

- Alice Kaswan

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

Monday, September 9, 2013

Christians and Climate Change: Lessons From Noah's Ark

This weekend, as I was driving back from a trip out of town, I had to turn around and take a picture of this church sign in Dumas, Arkansas:

Noah's Ark

I thought this was quite a salient metaphor for the most likely impending environmental disaster of our time, climate change. People thought Noah was crazy for building the Ark - for preparing for the worst case scenario that he felt pretty sure was coming. "Does it look like it's raining to you?" they said (paraphrasing). "Come on, a flood? That will wipe out society? No way that is going to happen" they said. And then the flood came. 

I would quip that one of Rush Limbaugh's ancestors would have been among those who said these things to Noah, but since everyone but Noah's family was wiped out, I suppose that is impossible. But recently, two evangelical climate scientists (Katharine Hayhoe from Texas Tech and Thomas Ackerman from Washington) called out Rush Limbaugh for spreading the idea that faith and science are irreconcilable. They were responding to Limbaugh's recent comment on his show that "If you believe in God, then intellectually you cannot believe in man-made global warming." The scientists stated that:

"Rush's uninformed rhetoric is demeaning to Christians who care deeply about what humans are doing to God's Creation and ignorant of the consequences that future generations will face if we don't respond quickly to the challenge of climate change."

They made a number of other sound biblical arguments supporting environmental protection, and noted that: 

"While our expertise allows us to understand the complexity of a changing climate and its causes, it is our faith that compels us to speak out and motivates us to push forward despite the opposition from voices like Rush Limbaugh and gridlock in Washington...We were appalled at the ignorance behind Rush Limbaugh's statement but we weren't surprised . . . This isn't meant to invoke pity, but rather to highlight the absurdity of our public debate around faith and climate change. Rush Limbaugh has a very big megaphone but no expertise or formal credentials to be considered an expert on the changes in climate occurring all around us. He has no theological training or record of leadership within a faith community. He's simply a radio show host willing to say controversial things, regardless of whether they are true or not."

I couldn't agree more with Dr.'s Hayhoe and Ackerman. But when I saw this church sign, it reminded me of the arguments that climate skeptics put forth seemingly based upon not being able to see today the full effects of the precipitous amounts of carbon that we have pumped into the atmosphere over the last 150 years (or based on fundamental misunderstandings of climate science: "it was a record low in Charlotte, North Carolina today. Global warming? Yea right!"). It wasn't raining when Noah built the Ark, but in an exercise of some Old Testament precautionary principle, Noah built his Ark anyway. In the same way, we can model with a high degree of certainty the impacts of increasing carbon concentrations in the atmosphere at the rate that humans have. We should take precautionary action accordingly, even if - and especially if - it is only future generations that will bear the full brunt of climate change's effects. 

The Bible is replete with mandates to protect future generations. In rejecting the basic science of climate change, or even the science of the environment more generally - and our dependence upon it - far too many conservative christians are in the business of maximizing their short-term welfare to the detriment of their children's children. Noah didn't do that. He invested (his detractors would say "wasted") a lot of money and time in building the Ark. He incurred a short term economic cost in order to preserve his children's future. Christians would be wise to do the same - it is after all, a mandate of the Bible.

"Increased hurricane frequency and intensity? Yea right. Miami and New York City under water? That can't happen. Economy crumbling because society cannot adapt as quickly as the climate is changing? You're crazy." But it wasn't raining when Noah built the Ark.

- Blake Hudson

September 9, 2013 | Permalink | Comments (2) | TrackBack (0)

Sunday, September 8, 2013

Bike Sharing

The City of Forth Worth embarked on an ambitious bike sharing plan last April with the assistance of a $1 million federal grant.  Just last month, it received another grant--- this one for $550,000 from the Texas Department of Transportation---to expand the program. 

While praised here in Fort Worth (and in many other cities) as (1) an extension of bus and rail systems and (2) inspiring a sense of community, noted property scholar Stephen Clowney (Kentucky) over at Property Prof Blog is one of several commentators who have critiqued such programs on efficiency grounds (see, e.g., here and here). 

The Portland (OR) Bureau of Transportation website includes an information page titled "What We Have Learned from Other Cities."  The page includes a list and the basic parameters of existing bike share programs in the U.S.

-Tim Mulvaney (tmulvaney@tamu.law.edu)

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