Monday, November 25, 2013

Guest Post, Cinnamon Carlarne: Our Toxic Marriage

We are excited to have Cinnamon Carlarne guest blogging with us today. Cinnamon is an Carlarne_cinnamonassociate professor at the Ohio State University Moritz College of Law.

There’s been some big and—at least for many—surprising news on the environmental front lately. A recent analysis published in Climatic Change challenges the existing state-centric and, at times, narrow focus of the climate change debate. According to this new analysis, a “total of 914 billion tonnes of CO2-equivalent (GtCO2e) has been traced to 90 international entities” and “[t]he emissions traced to the carbon majors represent 63 % of global industrial CO2 and methane from fossil fuel combustion, flaring, venting, fugitive or vented methane, own fuel use, and cement between 1751 and 2010.”   To translate: this means that 90 international entities, consisting of investor-owned businesses as well as state-owned and government run entities, are responsible for producing almost 2/3 of post-industrial era greenhouse gas emissions. Among the sobering dimensions of this revelation, is not only how few companies are actually responsible for generating the brunt of the emissions that now plague so many across the globe, but also how difficult it is today to disaggregate the decisions made by these companies from the society that has emerged and evolved in reliance on – and, now demanding – cheap energy. Compounding this is a dispiriting concern about how existing physical and political infrastructure makes it incredibly difficult for even the most optimistic among us to envision a non-fossil fuel based energy system – at least in the near term.

This new revelation brings to mind how esteemed environmental scholar Oliver Houck so vividly discusses Louisiana’s relationship to the oil industry. As Houck explains, the oil industry, an industry around which so many facets of Louisiana’s social, political, and economic culture now revolve, simultaneously feeds and starves the state. In commenting on the response in Louisiana to the 2010 blowout on the Deepwater Horizon rig Houck offers: “The reaction of Louisianans to the BP blowout has been to protect the industry and its longstanding commitment to what has turned out to be a very dirty …, plainly unsustainable … and deleterious relationship ….”   Louisiana’s solicitous reaction is readily understandable: over time, the more the state benefited from the presence of the oil industry, the more the constituents of the state came to rely on those benefits and to structure the society around those benefits. Louisiana became more and more dependent on the industry and all of its collateral benefits. The oil marriage brought the benefits of jobs, money, and collateral infrastructure. These benefits, however, are uneven and adhere only to some and, with regard to the greatest benefits, only to a very few. And, as the relationship has progressed, the destructive forces have become more apparent and more corrosive. From the canals that rip apart and degrade Louisiana’s wetlands, to the oil that poisons the coastal waters and all of its inhabitants, to the economic devastation that comes both slowly and in sudden bursts to the long beholden citizenry of Louisiana, the marriage is gradually devastating Louisiana from the inside out.  This is a marriage—but not of equals. It’s a marriage of deep convenience that’s turned into one of deep dependency. And, it is a marriage that, from the very beginning was doomed to self-destruct.  Contemplating the future, Houck bemoans: “Then again, this is Louisiana, and we and oil remain faithfully married—at least until the industry leaves us, as it surely will after a few more heady years, with only the memories and a wasted skin.” 

The picture Houck describes of Louisiana is vivid and stark. Unfortunately, this is not the only marriage of its sort around. The relationship structure is often replicated – too often replicated –in relation to natural resources worldwide.  (Just think about the operations of mining companies in the US and around the world.) But, the most sobering thing about this recognition in light of the ongoing climate negotiations and this recently released greenhouse gas study is that not only is the relationship replicated, but it is replicated on different scales: not only the relatively small state-level scale Houck describes, but also on a much grander, global scale. The most vivid representation being, of course, our relatively recent but now fully committed marriage to the handful of companies that enable us to consume seemingly limitless amounts of cheap energy, more specifically seemingly limitless amounts of fossil fuel-based energy.

In the global community’s marriage to the companies that fuel and enable our fossil fuel consumption, the marriage brings widespread benefits in the form of economic development, with all that this entails.  But, the benefits are far from pure; they cut cleanly and divide sharply. They fall unevenly across and within States and they institutionalize inter- and intra-state disparities in human health and well-being. Yet, the benefits are very real and are generally seen as desirable if not essential to basic human rights. As powerful – and empowering – as the benefits of this marriage are, though, the marriage is riddled with faults. And, the faults of the marriage mimic tectonic faults; they are powerful, unpredictable, and capable of wreaking great destruction. The greenhouse gases these 90 entities have and continue to release are not visible. They do not rip asunder the terrain of the earth like the canals and pipelines do in Louisiana. Instead, they blanket the Earth in warmness but the comfort of this warmness generates beads of sweat that drip down the face of the Earth changing it as they roll. The process begins slowly but eventually gains momentum and the marriage becomes more and more painful both to witness and to live within. And, the pain of the corroding marriage is borne disproportionately by the innocent half; the half that was not able to grow and develop as quickly or fully within the bounds of the marriage.

As in Louisiana, we – as a collective whole – remain faithfully married to our 90+ generating entities and to the energy they produce. We do not yet know when or how or even if the marriage will end but we do know that the marriage is toxic and that whether it ends or drags on endlessly, it will leave us with far worse than a wasted skin.

- Cinnamon Carlarne

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

Friday, November 22, 2013

Field Notes

Over the past several months, I’ve spent a lot of time talking to environmental attorneys in my home state about the state of their practices.  The reason for this effort is straightforward: I practiced what seems like a long time ago and in a faraway state, and I like to keep my knowledge of practice current even if it’s increasingly indirect.  But I also thought a report on some of the things I learned might be useful for current students who are wondering what their future practice might look like (and what courses they should take), and for anyone interested in the ways environmental law practice varies from place to place.

The discussion that follows comes with an obvious, but important, caveat: environmental law practice does vary tremendously from location to location.  If I had been talking to attorneys in rural Ohio, I probably would have heard a lot about fracking.  In California, water allocation is a very big deal.  In Maine, there is no fracking and water allocation is almost a non-issue (which makes me, and no one else, kind of sad).  So the comments that follow don’t apply everywhere.  But I suspect some of the issues that came up are representative of broader trends, particularly outside major metropolitan or manufacturing areas.

The Generalists.  Almost all of the attorneys I met with emphasized the generalist nature of their practices.  Many had developed specialties in particular areas, but they had multiple specialties, and their expertise spanned well beyond the bounds of what we would traditionally think of as environmental law.  This was a practical necessity.  While some attorneys had enough traditional environmental law work to keep them busy, most needed to combine their environmental practices with other areas.  And even matters that initially seemed to be primarily about environmental law often turned out to implicate property, contract, tort, tax, and local government law (among others).  Only at one firm did an attorney tell me he thought client needs were creating the need for greater specialization, and the comment sparked a lively discussion, with several of his colleagues disagreeing.

This isn’t particularly surprising, particularly in a smaller legal market.  But it’s worth noting because it has important implications for the ways lawyers prepare for environmental practice.  In my state, at least, a lawyer with ten environmental law courses under her belt is probably going to be a less attractive candidate than a lawyer with half as many environmental courses but a stronger general legal education.

The Land Use/Energy Intersection.  Another unsurprising, but still important, observation is that environmental law remains deeply intertwined with land use and energy law.  In Maine, much of the environmental legal work arises from energy projects, with wind power a particularly significant generator of attorney hours, and hydro still playing an important role.  Traditional land use disputes also continue to be part of the bread-and-butter work of environmental attorneys.  Land use and energy law, it seems, are still very important courses for environmental law students to take.

Litigious West, Collaborative East?  This is just a qualitative impression, not backed by any rigorous analysis, but it seems to me that there’s a lot less environmental litigation in Maine than there was when I practiced in California.  Many of the attorneys I spoke to shared that general impression.  They noted that disputes tend to be settled without litigation, and that most of the litigation that does occur involves administrative proceedings and never gets to the courts.  Those statements could just reflect Maine’s self-image--perhaps accurate and perhaps not--as a place where self-reliant people work things out in civilized ways.   But I think there’s something to it.  Years ago, when I made the switch from eastern environmental consultant to western environmental law student, I was taken aback by the intensity and, at times, the vitriol of environmental disputes in the west.  The 2000 PIELC conference, at which Julia Butterfly Hill was nearly shouted off the stage by anarchists who thought her a sell-out, was a bit different from anything I’d experienced in Massachusetts.  And I think those cultural differences (and the environmental and economic differences that help create the cultural differences) do impact the ways environmental law is practiced.

The March of the Consultants.  Another important impression from my meetings involves the role of environmental consultants.  In Maine and, I think, everywhere else, there’s a form of ecological succession in the environmental profession.  Lawyers tend to thrive in disturbed habitats, where conditions are changing and the rules are uncertain, or in environments (like litigation) where they can perpetuate and protect their niche.  But as the habitat matures and questions become more settled, the consultants move in, using their relatively lower prices to occupy habitats once dominated by the legal profession.  Before going to law school, I was part of that shift; I worked with an ex-lawyer performing the kinds of environmental audits his old law firm had once done.  And the attorneys I spoke with all agreed that the trend is continuing, with lawyers increasingly reviewing the work of consultants or ceding parts of the field to them entirely.

That has interesting implications for legal education and environmental policy, though I’m not sure what they all are.  If many of the people who work in the environmental law field lack legal training, the gaps in their educations could impact the ways those laws are implemented, and it would be intriguing to explore whether and how those changes are occurring.  It also creates opportunities, I think, for law schools that can offer training to future environmental consultants, or who can bring students from other disciplines into law school classrooms.

An Interesting Job.  One last thing emerged from my meetings: the people I talked to generally seemed quite enthusiastic about their work.  I probably shouldn’t make too much of that; a person who doesn’t like environmental practice probably would switch to something else, or at least would be less enthusiastic about telling a professor about her work.  But even discounting for some selection bias (and, perhaps, confirmation bias), I think there’s something to my impression.  The environmental field remains an interesting place to work, and that’s true whether you’re in government, the non-profit sector, or at a firm.

-Dave Owen

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

Thursday, November 21, 2013

Stadium Sprawl

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I am an avid sports fan. In a world that is often fraught with ugliness, I find that sports provides a nice, safe, uncompromised place for reflection on the better qualities of human behavior and circumstance (though sports can at times have its ugly side too, of course). My Major League Baseball (MLB) team is the Atlanta Braves. I have been a fan since they went from worst to first in 1991, when I held tightly onto my homemade tomahawk and lucky syrup bottle cheered vigorously during each game of the World Series. At that time, the Braves played at Atlanta-Fulton County Stadium. In 1997 they moved to Turner Field, which was built as part of the 1996 Olympic Games. Before Fulton County Stadium was turned into a parking lot, this is what the two stadiums looked like side by side:

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Though some have argued that Turner Field is not a “particularly distinctive or noteworthy ballpark,” it makes for a wonderful baseball watching experience in my opinion. It has a new feel combined with the throwback style reminiscent of Camden Yards and other "retro parks" built in the last few decades. For a while Turner Field even sported the largest (or one of the largest) jumbotrons in professional sports. The stadium is not old or run down by any means. As Jerry Crasnick describes:

Turner Field, at 17 years of age, is younger than U.S. Cellular Field, Camden Yards, Rangers Ballpark in Arlington, Progressive Field and Coors Field -- all stadiums that have been built during the ballpark "renaissance" that's taken place in baseball over the past two decades.

In fact, the only problem I see with Turner Field is its location. Often, stadiums are either far outside of the city and relatively easy to get to and park (Rangers Ballpark in Arlington; Citizens Bank Park in Philadelphia), or they are in the city and easy to walk to (Coors Field in Denver; Busch Stadium in St. Louis). Turner Field is neither - it is in no-man's land, too far to walk to (with few public transportation options) and not easy to drive to and park. Other than that, however, it is a perfectly functional and nice ballpark (and I've visited many - I only have 3 more MLB stadiums to visit of the 30 major league teams - part of my bucket list).

So when I heard that the Braves were ditching Turner Field and moving to the suburbs of Atlanta to build a new park I was quite shocked. Look, I get it. Lease terms are not always fair, and it takes two sides to work things out. I also get that buildings, including stadiums, have a lifespan. Once they get into old age both structurally and functionally it may be time for a change (think of Tropicana Field in St. Petersburg, FL, and home of the Tampa Rays - probably the worst place to watch a baseball game in the history of the sport, including little league fields across the United States. Of course, with Tropicana it is not structural age that is the problem, but rather the lack of functionality. But see Fenway Park). Finally, I get that sometimes teams leave stadiums that are not suited to their sport. This is what happened recently when the Miami Marlins left the stadium where the Dolphins play professional football - the venue was designed to be a football stadium and is a terrible place to play or watch baseball. So I could hardly fault some professional teams for looking elsewhere to play. But leaving this well-functioning, relatively new stadium? I am sure it seems to make a lot of economic and business sense for the Braves, but from a strictly land use and environmental perspective it symbolizes the problem of poor land use planning and sprawl in the nation.

The new stadium will be located located about 10 miles north of downtown, at the I-75, I-285 intersection, and will cost approximately $672 million to build, according to a website devoted to the project. The development is projected to be "surrounded by entertainment options and green space, with the hopes of making the development a year-round destination." But, as we have seen in the past, the grand premonitions of economic boon do not always come to fruition. As noted by Jeff Schultz: 

When the Georgia Dome was built, which necessitated the clearing of land and relocation of several churches, political leaders similarly trumpeted the possibility of tremendous development in the area. We heard similar sound bites when the Olympic stadium (which morphed into Turner Field) was built. But anybody who looks up and down Northside along the Georgia Dome, or Capitol Ave and the streets surrounding Turner Field, knows that revitalization never took place. They remain scarred neighborhoods. Residents did not benefit from the construction of sports facilities. In any city, they almost never do.

Notwithstanding the uncertainty of economic growth, there are environmental impacts to consider. To be clear, it is not as if the new park will be built in pristine wilderness, as you can see from this satellite photo depicting the already sprawling outskirts of Atlanta where it will be located:

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Even so, there are invariably going to be environmental impacts resulting from the project: the removal of even more natural capital from the area, the energy intensive removal of prior infrastructure that was itself energy-intensively constructed (what are the carbon costs of all this stadium shifting?), watershed impacts whose contribution to already significant non-point source runoff problems in the area will be indeterminable until long after the project is completed, among a number of other environmental impacts. But here is the real kicker: Turner Field is set to be torn down after the Braves leave in 2017 to make way for, you guessed it, more development (at least we can legitimately call this development "infill"). Right at 20 years after this mammoth structure was built (an exceedingly energy intensive endeavor to be certain), it will be torn down.

This whole situation brings to light the many problems associated with land use planning in an "over-decentralized" system of government, where more than 88,000 disparate subnational governments act as rational herders on the national commons that is the land base and the natural capital present upon it. There is certainly no federal coordination, and states typically allow local governments a great degree of discretion in planning, especially if there are economic gains to be made. With so many jurisdictions implicated, individual projects may not appear to have a great environmental impact on the surface. But it is in the aggregate that so many of the intractable sources of environmental degradation, like nonpoint source water pollution, arise. It is basically as if 88,000 herders were in a nation-sized pasture standing stationary, adding sheep to their herd through new sheep births, until the increasing number of one herder's sheep eating grass resources merge with neighboring herds. Then suddenly, the grass resource is entirely consumed. Metaphorically it is the logic that drives a Radio Shack to move from the indoor mall of the 70's and 80's into the strip mall of the 80's and 90's, into the indoor-outdoor mall combo of the 90's and 2000's. The same activity taking place in three different spaces throughout time, while the prior two spaces remain unfilled on some vacant, blighted development space (for more discussion on the "dead mall" phenomena, see here). This is inefficient usage of land at its finest. Anecdotally, the logic reminds me of the time I was driving through Texas and saw a new Sonic restaurant franchise being constructed right next to a nearly identical Sonic restaurant franchise that was closed and abandoned - on the adjacent lot. Seriously.

The refrain is all too common in the environmental field - the federal government does not regulate nonpoint source pollution from agriculture, stormwater, and other vectors because the regulation of such pollution is a state and local government land use regulatory role. Yet we see eutrophication and toxification of our waterways (resulting in fisheries impacts in both freshwater and ocean systems), loss of biodiversity from habitat fragmentation due to development (which increases federal tax payer expenditures later in efforts to protect species threatened with extinction), continued loss and degradation of wetland functionality, traffic congestion and associated air quality impacts from the suburbanization of our cities, increased economic and environmental costs foisted on society through disaster events like flooding (from building in floodplains), among a number of other environmental ills. Is it really any surprise that these problems are arising? Can we really continue to sit back and act like we don't know what contributes to all of these problems? It seems clear that we know, so maybe we just don't care? Clearly the aggregated effects of individual municipal land use planning decisions play a key role in all of these problems. It seems that we either need to do something about it, and get serious about growth boundary protections and other land use planning options available to cities and counties that encourage (or compel) infill development, or just make a choice that we are going to live in an increasingly degraded environment. This is an ethical choice - we should either make an ethical decision to remedy the poor land use planning that contributes to this multitude of environmental ills, or accept that continuing to allow our environment to degrade is the ethical choice that we have made. We should at least be honest about it. We cannot keep pretending that we do not understand why all of the above environmental problems are proceeding apace - it is clearly because individual decisions like the Braves' decision to leave a perfectly functional stadium and build another one elsewhere do not appear environmentally harmful after an isolated, narrowly focused cost-benefit calculation. But in the aggregate the collective rationality of 88,000 local governments is doing great harm to the national natural capital commons. And it is not about not developing. It is about developing smartly and using land and the natural capital present upon it efficiently the way we should use any scarce and finite resource.

Probably the best way to sum up the logic of inefficiency in the usage of land that drives so many of our land use decisions are the words of one major league general manager, who (as Crasnick describes) stated:

"What are you thinking if you're the Rays? . . . They can't even get one stadium -- and the Braves have two?"

- Blake Hudson

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

Wednesday, November 20, 2013

MOOC Part II: MOOCs for Environmental Law Profs

I wrote a little bit a bout my first experience with MOOCs last week. I wanted to follow up to say a little more about the other MOOC I signed up for, which was a very different experience.

While my first MOOC was to help me figure out how to do a MOOC myself (and just to learn about the process), my second MOOC was to improve my research. Here is where I have a confession to make: I never took stats. I am terrible at stats.  Not so unusual for a law prof but not really acceptable for someone with a graduate degree in Environmental Science and Policy (It's actually a degrees in Environmental Science, Policy, and Management from the Society & Environment concentration because frankly Berkeley just can't seem to make simple names for their departments.) I use stats in some of my work, but only by relying heavily on co-authors, post docs, and hiring graduate students.  So I decided to take a stats course.

Where to go to learn stats? Well it seems to be a common enough need that every MOOC company has a stats course. There are also a couple of in person law-prof focused stats courses out there (like the one that happens every summer at UCLA). I ended up choosing a course from Udacity. Udacity's offerings are not as numerous (feels more like training seminars than college courses), but I really liked the format and the faculty. Unlike Coursera, you can take a Udacity class at your own pace. You could just power through the whole thing in one big Stats week or follow my path and take 6 months to finish the course (no I am still not done so don't ask me to look over your stats yet). Of course if you need the scheduled course and discussion times to motivate you to finish the course, then Udacity isn't for you but I am finding it very helpful. I still miss the student-teacher interaction and would benefit from having classmates to work on problem sets together, but it is cheaper and easier than the other options for learning stats out there.

So all this made me think about what other types of courses could be helpful to environmental law professors to aid us in our research and teaching. Not where would we point our students, but what might we want to take ourselves. I am not so interested in taking an environmental law course, but perhaps a chemistry from environmental lawyers course would be good. What else? Conservation biology? Psychology?

Jessie Owley

 

(btw - can we talk about how much fun it is just to say the word MOOC. mooc mooc mooc. Almost has good as Frack! The environmental law lexicon is expanding in a way quite pleasing to the palate and the ears)

 

November 20, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, November 15, 2013

MOOCing it Up

I recently finished my first MOOC. Not teaching a MOOC mind you, but I decided to take a couple of MOOCs. I enrolled in two and thought I would share some of my experiences and thoughts with you, particularly on the role of MOOCs in teaching Environmental Law. I enrolled in two different MOOCs for two very different reasons. I am going to talk about the first class today and chat more about my second experience next week.

I took a Climate Change course being offered by the University of Melbourne through Coursera. I chose this course for several reasons. Like many of my students, my choice was driven partly by schedule and professor. It was being offered August – October and taught by a slew of faculty including Jon Barnett, whose work I have read often and have cited periodically. My goal in taking the MOOC was to learn how MOOCs work and get a feel for what it might be like to put together a MOOC. So I chose a course on environmental issues (frankly, I was also just curious to see what would be included in an undergraduate course on climate change).

I learned a lot with this course. First, I learned more about climate change that I had known before. The two weeks on physics was fun and new and the detailed examples of the South Pacific Islands were quite helpful. I think I probably ended up as a typical MOOC student in that I listened to most of the lectures, did some of the readings, and never turned in my final assignment. I loved being able to watch lectures anywhere on a variety of devices (including my laptop, ipad, and smart phone). It was great to be able to schedule my own work and to multi-task without guilt (I got lots of knitting done). While the schedule was flexible with this course, there were periodic deadlines and you did need to roughly keep up with the materials as they became available. I also enjoyed seeing the different ways of presenting the lectures visually (lots of power point and video) and found a website with links and videos to be helpful. I found myself often jotting down ideas for my own non-MOOC environmental classes. It was also very cool to have classmates from around the world. I don’t think I even interacted with any other Americans in my online conversations or peer review processes.

What didn’t work for me? Well the flexibility in some ways means that it was really easy to put off assignments or skip weeks. (I’ll confess, I was motivated to take the course but not actually to put a lot of time into when well, you know, I am supposed to be writing and stuff.) I hated not being able to ask questions. I got confused in one of the physics lecture and didn’t quite understand a diagram. In class, this could be asked quickly. In a MOOC, you can ask a question in an online forum (or perhaps on twitter or facebook) but it can take a while for the TAs to get around to answering everyone. The online discussions did not work for me. I couldn’t figure out how many were enrolled in this class but it was oodles and felt like gazillons. The pace of the online discussion was fast, and keeping up with it would have been 5 times the work of the rest of the course. The conversation was all over the place politically with a lot of vicious statements that I just don’t see as much in a class where people can see each other face to face. The peer editing was a mixed bag too. With these big classes, the faculty and even the TAs can’t grade the work. This is why everything is done by either peer review or multiple choice questions. This has its obvious limits. One that I didn’t think of until I got my peer reviews back though was that many of my peers struggle with English. I literally couldn’t understand the sentences in one of my peer reviews – made me think someone had typed something into google translate and put too much trust in the result (hey at least they gave me full marks).

Any Lessons for Environmental Law? I am always making my students do annoying stuff try new things. Over the past few years, my natural resources students have had blogs, wikis, and websites. I am thinking of making them tweet next semester (I know that is so 2010 – maybe we’ll do snapchat instead). So it is maybe not surprising that I was intrigued by the idea of doing a MOOC. I quickly concluded though that it is not a good approach for teaching environmental law – at least not the way I want to teach it. There is a strength in moving lectures online and letting students do some self-pacing, but I would not feel comfortable losing the group discussions and exercises that we do in my classes. While some of my colleagues are talented at writing good multiple choice questions that really challenge students and require application of knowledge and skills, I am not one of that ilk. It is important to me that my students work on written and oral advocacy. I want them to work in groups and I am crazy unwilling to hand off reviewing their work to someone else – yes I am that controlling. As of right now, you won’t see me offering a MOOC until I can figure out a way to incorporate those elements (perhaps the answer is making the MOOC and OOC to start with). For those of you not yet aware, there is an environmental law MOOC out there already up and running. It is a 6-week course and does not profess to be a substitute for a law school or even an undergrad course on the topic. Not sure when it will next be offered, but could be fun see what is covered. Anyone wanna be in my study group?

- Jessie Owley

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

Tuesday, November 12, 2013

An Un-Common(s) Catastrophe: Philippines and the Tragedy of the Commons

The "Tragedy of the Commons" is that everyone overuses resources to the point of extinction. Since no one has a vested property interest, no one has the incentive to moderate their activities. On the contrary, the exploitation continues. One might say that climate change is a "Tragedy of the Commons." Since no one owns the atmosphere, everyone continues to dump greenhouse gases. Except, climate change may not be a tragedy of the commons. Typhoon Haiyan that hit Philippines was of proportions that scientists have long predicted would occur, with increasing frequency, because of climate change. Islands have been dessimated, houses have been flattened, and several other properties have been destroyed, some beyond redemption. These are not commons. They belong to the people of Tacloban, to the people of Philippines. If climate change is the cause of intensified storms that destroy property and territory, the solution does not lie in creating property rights in the atmosphere. It lies in respecting the property rights that already exist. As nations meet for the 19th Conference of Parties to the United Nations Framework Convention on Climate Change, this is the question they should consider: how do we protect legal rights to property of others?

Deepa Badrinarayana

November 12, 2013 | Permalink | TrackBack (0)

Thursday, November 7, 2013

Standing to Challenge EPA's Coal-Fired Power Plant Regulations

Dan Farber has a new post on Legal Planet in which he argues that the coal industry and electric utilities will lack standing to challenge EPA’s new source performance standards for coal-fired power plants, which the agency proposed in September.  Dan contends that because low natural gas prices are making new coal-fired power plants uneconomical (as compared with new natural gas-fired power plants), would-be industry challengers to EPA’s regulations will be unable to show that the regulations cause them any injury.  In other words, as long as new coal-fired plants are not being built because they are uneconomical for reasons having nothing to do with the EPA regulations, the regulations cannot be hurting the industry.  The mere possibility that the industry may build new coal-fired power plants in the future if conditions change, Dan argues, does not constitute an injury under standing doctrine.

Dan’s standing argument has some force, although I don’t think it is a slam dunk.  Despite the precedent that Dan cites, the question of how likely a plaintiff’s injury must be to suffice for standing purposes often gets squirrelly.  See, e.g., Natural Res. Def. Council v. Envtl. Prot. Agency, 464 F.3d 1, 6 (D.C. Cir. 2006) (noting differences among courts in deciding when increases in risk can confer standing).

My point, however, is not to agree or disagree with Dan’s argument, but to question whether pushing the argument would be a good strategy for EPA or environmentalists.  It is quite possible that the cost of natural gas relative to coal will change in the future to the point that new coal plants would be economically viable in the absence of the new EPA regulations.  The EIA, whose projections Dan cites (by way of a Washington Post article), has been wrong before about such things, and in fact has been accused of systematically underestimating natural gas prices.  If a utility company lacks standing now to challenge the new regulations for the reasons Dan cites, I would think it would be able to challenge the regulations later if the price of natural gas increases (or the price of coal drops).  Normally such a challenge would be time-barred because the Clean Air Act has a sixty-day statute of limitations for challenges to regulations.  See 42 U.S.C. § 7607(b)(1).  But if a utility was barred from filing suit earlier, the statute of limitations would not bar a later suit.  See 42 U.S.C. § 7607(b)(1) (stating that petitions for review “based solely on grounds arising after” the expiration of the initial sixty–day period are timely if filed within sixty days of the new grounds); Honeywell Int'l, Inc. v. EPA, 705 F.3d 470, 472-73 (D.C. Cir. 2013) (applying this exception).

Thus, it is not clear to me that EPA would be better off with a putatively favorable ruling on standing now that leaves a latent industry challenge to the regulations out there waiting to ripen, rather than a ruling that allows a suit now and bars future suits.

--Todd Aagaard

November 7, 2013 | Permalink | TrackBack (0)