Monday, March 31, 2014

A Couple of Takes on Climate Winners

Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.

I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here

I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world. 

- Michael Burger



March 31, 2014 in Climate Change, Economics, Energy, International, Land Use, Mining, Travel | Permalink | Comments (0) | TrackBack (0)

Saturday, March 29, 2014

NYU fellowship

NYU just announced an opening for a fellow at the school's Institute for Policy Integrity.  Clicking here will open up a pdf of the announcement.

March 29, 2014 | Permalink | TrackBack (0)

Wednesday, March 26, 2014

What does Crimea mean to the future of climate change treaty negotiations?

Russia is rapidly becoming a pariah in part of the international community following its inclusion of Crimea within it's territories. The United States and the European Union notably have imposed several sanctions; more recently they agreed to oust Russia from the G-8, a powerful, if informal, economic coalition. Whether Russia's actions violate international law amd whether sanctions will be effective in persuading Russia to undo its deeds are important and significant questions. Much has been written, and will be written, on the issue.


I worry, however, about the impact of these developments on ongoing climate change negotiations. Those who remember the history of Kyoto Protocol's (the Protocol) will recall that Russia ratifiaction was pivotal for it's entry into force. At that point it was largely speculated that Russia joined the Protocol because of two reasons--1) The European Union made its support for Russia joining the World Trade Organization conditional on Russia accepting the Kyoto Protocol, and 2) that Russia was not required to reduce emissions below 1990 levels, because of its economic collapse, and therefore Russia had a significant advantage in participating in Kyoto Protocol's emissions trading scheme. (See e.g. then, however, Russia has turned away from the Kyoto Protocol. In 2012, it rejected the Protocol's second commitment period. At the COP meetings in Qatar, Russia with Belarus and Ukraine tried to retain the emission permits, effectively to continue increasing their emissions post-2015. When Russia was unsuccessful in getting all its viewpoints heard, the three countries objected to the procedure and threatened to oppose any 2015 framework that did not clarify the procedure.

The events unfolding in Ukraine may change it...for better of worse. If the new Ukrainian government refuses to cooperate with Russia, Russia will lose an ally in its climate change negotiations. Even so, it may not help resolve the problem of Russian isolation, unless all nations boycott oil from Russia; this is unlikely to happen. The biggest question is whether Russia, which has so far taken sanctions in its stride, may simply step out of the negotiations unless it has its way--which is unlikely given the general mood in the United States and the European Union. It is perhaps time to think what the Russia-Crimea issue means to climate change.



March 26, 2014 | Permalink | TrackBack (0)

A Tribute to David Sive and Joseph L. Sax by Nicholas Robinson





March 26, 2014


In Memoriam:

 David Sive (1922-2014)  and  Joseph Sax (1936-2014)



In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2nd 608 (2d Cir., 1965). Known as the “Storm King” case, this ruling inaugurated what we today call environmental law. Two individuals above all others, guided and framed the jurisprudential foundations for environmental law.  We honor these founders today. Their lives are intertwined.


Pace’s faculty insisted that David Sive give the inaugural Garrison lecture. David did so, but insisted that his friend and fellow legal pioneer for the stewardship of nature,  Prof. Joseph Sax, deliver the second lecture in the series.  Lloyd had passed away four years before.  It was timely to commemorate Lloyd’s remarkable civic career and his seminal contribution to the birth of contemporary environmental law in the battle to safeguard “Storm King” mountain. A descendent of abolitionist William Lloyd Garrison, Lloyd was a pre-eminent civil liberties attorney, former Dean of Wisconsin Law School, and a leader of the Bar in New York, who had been called to service on many governing boards for federal agencies under three presidents. I came to know Lloyd before his passing, conferring with him on historic preservation law matters.


When the Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands had inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn engendered the birth of America’s conservation movement of the late 19th century.  The Hudson was also instrumental to the birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces. Here  above Storm King George Washington assembled soldiers from across the freed colonies for their final encampment before being demobilized. The Army’s West Point Military Academy overlooks the River and Storm King.  


Con Ed had assembled the political and legal power to secure approvals for its plan. A small coalition of citizens, led by Francis Reese and others, persuaded Lloyd to represent their cause: preserve Storm King.  He served as legal counsel to the Scenic Hudson Preservation Conference. With his able associate, Albert K. Butzel, who delivered a Garrison lecture in 2010,  Lloyd Garrison  won a landmark decision of the US Court of Appeals granting the citizens standing, reversing the FPC’s grant of a license to Con Ed., and determining that aesthetics, history and nature conservation had equal standing to economic interest, and must be considered before the FPC could lawfully act.


Among those who joined  the Scenic Hudson Preservation Conference’s legal battle was the Atlantic Chapter of the Sierra Club. David Sive and Alfred Forsythe had formed the Atlantic Chapter in the early 1960s,  despite heated opposition from Californians who felt the Club belonged there, and worried the Club would be stretched too thing.  Dave chaired the Chapter. In those days, I recall how its Conservation Committee debated issues from Maine to Florida. The Chapter’s center was with Sive in New York, campaigning for example to save Olana, the Hudson painter Frederick  Church’s home and studio. Having the prestige of the Sierra Club meant a lot to the Storm King cause.  Sive represented the Sierra Club in its intervention in the Storm King case.


While litigation over Storm King battled on, David Sive also agreed to represent a similar grassroots community movement, the Citizens Committee for the Hudson Valley v. Volpe. Federal Transportation Secretary John Volpe had approved siting a super- highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, located there to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the Tappan Zee Bridge.  Without the  benefit of any environmental statutes, which would only be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, Sive prevailed against the State and federal defendants. Upheld on appeal, Congress also ended up backing the citizens. Pace’s Dean Emeritus, then Congressman Richard L. Ottinger successfully blocked a bill intended to overturn the court decisions.  Sive had won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires.  David Sive saved this lovely part of the Tappan Zee, Kingsland Point Park, beaches and marinas, a rare location where a person can reach the River’s banks without being barred by the NY Central’s railroad tracks. Had Joseph Sax’s public trust scholarship been published a decade earlier,  Sive might have relied on that legal doctrine as well.


[Parenthetically, I served as Dave Sive’s law clerk in 1969 on the appeal of the Hudson River Expressway case, and every summer since 1972 I have swum in the Hudson where the highway would have been built. My daughters learned to swim there, and my grandchildren and I swim there still.]


Public interest litigation to safeguard the environment was born in these cases.  Citizen outrage about pollution and degradation of nature was then wide-spread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive and Joseph Sax were prominent among participants. Their essential conclusion was that  “environmental law”  needed to exist.  Like Sive, Sax , while a young professor at the University of Colorado, had helped the Sierra Club opposing development of the Colorado River, and had become involved in a legal campaign, launched by Victor Yannaconne, to ban DDT in the wake of Rachael Carson’s Silent Spring.  At Airlie House, I was privileged to listen to Sive and Sax debate strategies about how to expand beyond the scope of administrative legal remedies to forge this new field of “environmental” law. Participants took heart from the civil rights movement, and argued that if the NAACP Legal Defense Fund could engage courts to remake the law against all odds, so could those who defended the environment. They left that conference motivated to act.  


On December 1, 1970, Congress enacted the National Environmental Policy Act, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). In Michigan, Joe Sax wrote and saw enacted the Michigan Environmental Act of 1970, with provisions for citizen access to justice to enforce environmental rights. In the wake of both NEPA and his Michigan legislation, Joe Sax articulated and published doctrinal and civic foundations to support public interest litigation and define the environmental duties government owed its citizens. His landmark book, defending the Environment: A Strategy for Citizen Action appeared in 1971. The CEQ named a  Legal Advisory Committee to recommend  how agencies should implement NEPA.  Dave Sive and Joe Sax emerged as the environmental leaders on this Committee, which was chaired by US Attorney Whitney North Seymour (SDNY).[1] CEQ issued its NEPA ”guidelines” on recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment. Nicholas Yost later codified the case law for CEQ in 40 CFR Part 1500.


Dave Sive, withhis law firm, Sive Paget & Riesel, went on to represent citizens in a number of NEPA cases, winning rulings of first impression. Sive was a founder of Natural Resources Defense Council (NRDC), which became the pre-eminent champion of public environmental rights before the courts. Sive also led the establishment of the leading environmental lobby group in Albany, now known as Environmental Advocates, and campaigned for stronger State legislation. To continue the Airlie House conference precedent, Sive institutionalized the professional study of environmental law as a discipline through creation of the Environmental Law Institute (ELI). With ELI and ALI-ABA, he launched nation-wide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. On becoming a Professor a Pace, Dave helped launch its Doctor of Juridical Sciences degree, mentoring Dr. Robert Goldstein in his thesis; Robert is now a Professor in the Law Department at West Point. He vetted Prof. Robert F. Kennedy Jr.’s exposé of mismanagement in the NYC Catskill Watershed; Bobby Kennedy’s work launched the much-remarked regime of ecosystem services between New York City and Catskill communities. Sive, honored as a Member of the IUCN Commission on Environmental Law, was celebrated by its long-time Chairman, Wolfgang E. Burhenne, as being a legend in his time.


David Sive epitomized the best of what makes law a learned profession.  He was a true role model. Michael J. Walker, director  of the US EPA’s National Enforcement Training Institute, wrote last March 24th  of his hope that each of the 54 new law clerks being trained at EPA this week ”will continue the work that Mr. Sive began 50 years ago. We will begin with a ‘thank you’ to a leader and patriarch in the environmental movement: David Sive.


Joe Sax went on to become America’s pre-eminent professor of environmental law.  In that fertile year, 1970, he also had published “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (68 Mich. L. Rev. 47).  His teaching and research in water law brought him perceptions about the public trust doctrine hidden to others. His article inspired a generation of law professors and public interest litigators who engaged the courts to protect public trust interests, especially access to public shores along rivers like the Hudson. The idea of legally protected pubic rights , which citizens  can defend, is fundamental to environmental law. Sax’s work inspired  Bob Boyle and other founders of the Hudson Riverkeeper, and in turn the world-wide Waterkeeper movement.  Pace’s Environmental Litigation Clinic recently won a major public trust case in New York State courts. Law schools nation-wide are indebted to Joe Sax for his inspired scholarship and vision. In his prolific career, Joe’s many further books and articles engaged the minds of environmental law professors across America. Internationally, he was a laureate of the Elizabeth Haub Prize in Environmental Law, and lectured to law professors of the IUCN Academy of Environmental Law its annual Colloquium in Sydney Australia, in 2004. His ideas won a global audience. When India’s Supreme Court recognized the public trust doctrine in that nation, the research of Prof. Joseph Sax was evident.


Looking back at his four decades of cultivating environmental law in 2007, Sax  reflected on the duty of the state to protect the people’s common heritage: “Only when this precept is expanded into a general principle of our domestic  law governing all out natural resources will we be able to say we have truly implanted environmental jurisprudence into our legal system.” When Joe passed, the law professors’ Internet list serve buzzed with praise for all his contributions. He mentored a generation of law professors. Another Garrison lecturer, Prof. Oliver Houck, observed : “In late l969 I heard Joe Sax and David Sive speak in DC.  Like watching dawn break.  I've never looked back ...”


David and Joe were both humble and self-effacing men. They would have been pleased to be celebrated together, each basking in the earned accolades of the other. That was their demeanor when they were here together with the first 10 Garrison laureates, who were assembled at Pace in 2005 by Prof. Robert Goldstein.  John Cruden, President of ELI, last March 20th observed: “I have now had the opportunity, in three separate events, to pay homage to Joe and David. It is a rare audience that people do not know one or both, and everyone has heard of them. Each time I speak about them, stories follow. Joe was an inspiration for me, David a mentor. Their legacy is golden, but thinking about them both  challenges me to do more.” 


The ripples from their professional work have spread far and wide. It is fair to observe that the reforms that Sive and Sax engendered in time produced Principle 10 of the Declaration of Rio de Janeiro on Environment and Development, adopted by the UN 1992 Earth Summit. This principle embodies many of the reforms that they urged in the 1970s and beyond: rights of access to environmental information, to pubic participation in environmental decision-making and to access to the courts.[2] These are today recognized as global norms. The combined legacy of their lives is global.


We are honored that David’s wife, Mary Sive, a great outdoors woman, and his daughter Helen, are with us here today. In his last years,  when he was able, Dave enjoyed attending the Garrison lectures. On behalf of us all, may I thank the Pace Law Library and Environmental Law Program staff, especially Leslie Crincoli and Prof. Lin Harmon, for the commemorative exhibits that accompany this 2014 lecture, honoring Joe and Dave. David Sive would have been pleased to have been here today to welcome Prof. J.B. Ruhl to deliver the 2014 Garrison lecture. J.B. is a pre-eminent environmental law scholar, and is very much the heir to Joe Sax’s scholarly legacy of innovation. This year especially, the spirit of Sive and Sax infuses the Garrison Lecture.



Nicholas A. Robinson


March 26, 2014






[1] See the 1971 CEQ Annual Report, Appendix, Membership of Legal Advisory Committee, at p. 355.

[2] Principle 10 of the Declaration of Rio de Janeiro on Environment and Development provides:  “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the enviro9nment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” This norm today is embodied in national statutes and constitutions around the world, as well as in a number of treaties.

March 26, 2014 | Permalink | TrackBack (0)

Thursday, March 20, 2014

Teaching Water and Takings

Over the past few years, I’ve spent a fair amount of time thinking about water rights and the takings clause.  One outcome of that work is an article, which just came out in the Washington University Law Review, on takings and groundwater use regulation.

Another output is a case study designed for law school teaching.  It draws upon an ongoing conflict between the Bragg family and the Edwards Aquifer Authority.  That conflict already produced several published decisions—with more potentially on the way—and a fair bit of commentary (examples here and here).  Its facts also make it a good fit for a classroom. 

The very quick summary is that the Braggs planted one pecan orchard, and bought another, well before the modern regulatory regime for the Edwards Aquifer came into existence (but after conflict over that aquifer had begun to brew).  They planned to use Edwards Aquifer water to irrigate their orchard, but not immediately.  By the time their trees had grown large enough to need the water, a different and much more extensive regulatory regime was in place, and it favored existing users.  So the Braggs sued, alleging a taking.  Their claims raise a whole host of interesting issues, including, among others, what analytical framework is appropriate for a water rights/takings case, what counts as a reasonable investment-backed expectation, how diminution in value should be measured, what forms the relevant unit of property in a water rights/takings case, and what basic values takings doctrine should serve.

My case study provides students with a summary of the conflict and a few documents from the record (there are many more that could be included, but I elected to keep it simple), and it asks them to argue the case from the point of view of the Braggs, the EAA, Environmental Defense, or the Texas Attorney General’s office.   I’ve tested it out once (after covering a few water/takings cases in the previous class), and it seemed to go very well. 

If you’re interested in an MS Word version of the case study, in seeing the exhibits, or in seeing other documents from the case, please let me know.  And a big thank you to Deborah Clarke Trejo, who represents the Edwards Aquifer Authority in this litigation and who provided me with some of the key documents.

-Dave Owen

March 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

Texas A&M Visitor Position

Texas A&M University School of Law seeks applicants for one or more Visiting Professors for one or two semesters in the 2014-15 academic year.  We are focusing our search on two subject areas: (1) natural resources and environmental law (including related areas such as energy law, land use law, water law, biodiversity law, hazardous waste law, and wildlife law); and (2) patent law (including related intellectual  property subjects).  Applicants should have demonstrated outstanding academic and scholarly achievement in their respective areas, as well as strong classroom teaching.  The Visiting Professors will teach one or two courses each semester and will be encouraged to participate broadly in the intellectual life of the law school.  

Salary will be commensurate with qualifications and experience.  Funding is available for professional travel and development activities.

Review of candidates will begin immediately.  Expressions of interest should be submitted as soon as possible and will be reviewed on a rolling basis until positions are filled.  Candidates should submit a cover letter including a statement of interest, a curriculum vitae, and a list of references, including their telephone numbers and email addresses, to Professor Meg Penrose, Chair of the Faculty Recruitment Committee, at the following email address:

An Equal Opportunity Employer, Texas A&M University is committed to employing quality faculty who will enhance the rich diversity of our academic community.  In that regard, we are particularly interested in receiving applications from a broad spectrum of qualified people who are representative of the state’s diversity.

- Tim Mulvaney

March 13, 2014 | Permalink | TrackBack (0)

Wednesday, March 12, 2014

Joe and the Baby

Environmental law lost a giant last weekend.  Since Joe Sax passed away, the environmental law professors’ listserve has been a steady stream of remembrances, many focused on his enormous contributions to the field.  For me, a different memory stands out above all the others.

It was just a brief moment in water law.  One of my classmates had a baby during the semester, and, perhaps because of trouble finding childcare, she started bringing her infant to class.  The baby was usually quiet, but one particular day was a fussy one.   This made the rest of us uncomfortable.  We were twenty-somethings without children, living the glorious extended youth of the Bay Area, and working through the challenges of childcare was part of a distant future we rarely contemplated.  This intrusion of a baby into our sheltered worlds seemed weird.  And it wasn’t just any class the baby was intruding upon.  We all worshipped—and, at least a little bit, feared—Professor Sax, not because of his personality but because of his stature and obvious intellect, which stood out even at a place like Berkeley.  Poor manners had no place in that room.  So we felt a palpable sense of relief when the student picked up her fussing baby and started toward the door.

Then Professor Sax spoke up.  “There’s no need to leave,” he said, as though only a fool would have thought otherwise.  “Babies fuss.  That’s just what babies do.  I don’t think anyone minds.”  And saying it, of course, made it true.  We realized that this person we thought of as an intellectual demigod was also a father and a grandfather.  Everyone relaxed.  Class went on.  And we all learned something about the possibility of combining greatness with kindness and compassion.

Years later, I still want to be Joe.  He could turn rigorous legal analysis into something profoundly elegant—charismatic, even—in a way I’ve never quite seen emulated, though not through any lack of trying.  But even if I never achieve that grace, I at least can imitate him in other ways.  It doesn’t happen often, but on the rare occasions when students bring their children to class, I smile, think of that day in water law, and try to make sure the parent and child both feel welcome.  And if a baby ever does start fussing in my class, I’ll have my line ready, and I’ll think with fondness of the man I learned it from.  I hope he would be proud, but more likely he’d think nothing of it.  After all, that’s just what professors should do.

What a loss. 

- Dave Owen

March 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2014

How Enforcement Works

Last Saturday’s New York Times had a story describing the “defanging” of North Carolina’s environmental regulatory agency.  The story began with this depressing quote:

“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors called to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”

Trip Gabriel, Ash Spill Shows How Watchdog Was Defanged, N.Y. Times, Feb. 28, 2014.  What follows has become all too familiar: intimidated by political pressure, the state agency finds itself in disarray, even the threat of regulatory enforcement dissipates; and, sooner or later, massive amounts of coal ash start flowing downriver.

 The story made me think of my own first in-depth lesson in the value of environmental enforcement.  It came in what may initially seem like a very different context: universities.  But the story provides an interesting morsel of recent environmental history, and it says a lot (I think) about enforcement’s role.

 For years, universities weren’t accustomed to thinking of themselves as targets of environmental enforcement.  But in the mid-1990s, EPA audited Yale’s environmental compliance, and the results would shock anyone accustomed to thinking of universities as environmental leaders.  According to a Boston Globe story about the resulting settlement, Yale wound up pledging over half a million dollars to environmental programs and paying a $69,750 fine.  Many New England Colleges Break Environmental Rules, Boston Globe, May 27, 1996.  EPA’s northeast regional office also announced that it was making the educational sector a target of its enforcement efforts.  More audits and more fines, many of them quite large, soon followed.  See, e.g, Tatsha Robinson, UNH Faces Fine in EPA Waste Investigation, Boston Globe, March 15, 1999; Peter J. Howe, BU to Spend $2M in EPA Settlement, Boston Globe, October 9, 1997.

 At the time, I was a recent college graduate working for an environmental consulting firm just outside Boston.  For us, enforcement meant opportunity, and we aggressively marketed our own auditing services, promising universities that we would find, and fix, their problems before EPA came knocking.  As a business move, it worked well, and I soon found myself seeing parts of college campuses that I’d never seen as a student.  Some of what I found shocked me.   I had worked on plenty of hazardous waste sites.   But the scariest things I ever saw were in the chemistry labs of universities.  Even a well-managed lab—and I did see some--is a dangerous place; chemicals that seem familiar to most researchers become quite worrisome once one reads their material safety data sheets.  And many of these labs weren’t well managed.  Among other problems, I saw old and potentially explosive picric acid containers; incompatible wastes stored together; and, in some places, unidentified, abandoned, frothing messes.    The labs weren’t Love Canal, but they also weren’t anywhere I would want to work—or would want to send my children to school.

 So why was this happening?  The answer isn’t some old trope about evil, greedy corporations placing profits above environmental quality and human well-being.  Universities are financially driven, of course, but I believed then, and still believe now, that most universities take their public service missions quite seriously.  Nor was it a lack of expertise.  One sometimes hears complaints that environmental laws have become too complex for anyone to comply with, but at most of these campuses, there were health and safety managers who had a pretty good idea what their school was doing wrong and how it might do better.  Instead, the institutional problems were more mundane.  Health and safety departments were understaffed.  They also lacked leverage.  At most universities, the star researchers rule the roost, and those researchers are unlikely to listen when a health and safety manager with only a bachelor’s degree explains why the lab needs to be managed differently—unless, of course, an enforcement threat adds force to the health and safety manager’s words.  And for years, most universities hadn’t even considered the possibility of that threat.

 When the enforcement threat did arise, it changed all of those dynamics.  A few months after EPA announced that universities would be an enforcement priority, it hosted a public informational meeting on compliance at colleges and universities, and I went.  The room was filled with high-level administrators, most of the people who would never have shown up at a health and safety conference a few months earlier.  They were paying close attention, and they took what they heard seriously.  Universities started hiring consultants to perform audits.  They started listening to their consultants—and their own health and safety managers—when they recommended changes to environmental management programs.  And they made the changes.  Labs got cleaned up.  Plans were updated and modernized.  Better management protocols went into place.  Training improved.  When I left for law school, the transition still was just beginning.  But even in my short time working with universities, I thought we were able to make a huge and positive difference.

So what does enforcement do?  Part of the answer is so obvious that it’s disheartening how often it needs to be restated.  It provides people with incentives to actually comply with environmental and safety laws.  And every institution—not just evil corporations—needs those incentives; compliance requires persistent attention to detail, and we all have the impulse to cut corners.  In addition, enforcement often creates change not by punishing the environmentally bad actors within in institution, but instead by empowering the people within the institution who want to do things right.  At least, that’s what happened with universities, and the consequence has been a safer working and learning environment for thousands of students.

- Dave Owen


March 4, 2014 | Permalink | Comments (0) | TrackBack (0)