Monday, April 28, 2014

Visiting Assistant Professor (VAP) in Environmental Law at Pace Law School

Pace Law School seeks applicants for a new Visiting Assistant Professor (VAP) in Environmental Law. The VAP in Environmental Law will hold a one-year appointment, renewable for a second one-year term. The appointment is designed to mentor and train future environmental law professors.

The VAP will have a reduced teaching load of one course per semester, the opportunity to focus on scholarly research and writing, and the expectation that s/he will enter the law school teaching market. The VAP will receive the same office and administrative support as other faculty members, is invited to participate fully in faculty activities, and will receive a small travel and research fund. Additionally, the VAP will present a work in progress at Pace Law School’s Future Environmental Law Professors Workshop, receive feedback and mentoring from other scholars, and present a finished manuscript to the faculty at our weekly scholarly colloquium.

The salary for the VAP in Environmental Law is $55,000 per year plus benefits, including health and dental insurance.  The VAP will not be eligible for a full-time tenure-track or tenured faculty appointment at Pace Law School until after six years following the completion of his/her term in residence.

Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. Pace is committed to achieving equal opportunity in all aspects of University life.  Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school.  Pace is committed to achieving completely equal opportunity in all aspects of University life. 

Applicants should submit:

  • Curriculum Vitae (that lists three references and law school courses the candidate would be interested in teaching)
  • If possible, one published scholarly article or unpublished paper draft that reflects the candidate’s scholarly interests and potential

The application deadline is May 1, 2014.

If you would like to be considered for a Visiting Assistant Professor in Environmental Law appointment beginning in the Fall of 2014, please send your application materials via email to Professor Jason J. Czarnezki at jczarnezki@law.pace.edu.  Only electronic submissions will be accepted.

April 28, 2014 | Permalink | TrackBack (0)

Thursday, April 24, 2014

China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?

News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.

 

Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.

 

Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?

--Deepa--

April 24, 2014 in Asia, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, International, Law, Legislation, Sustainability | Permalink | Comments (0) | TrackBack (0)

Guns, Popular Constitutionalism and the Bundy Protests

Jared Goldstein has a fascinating piece in Thursday's morning edition of Slate on the roots of constitutional vigilantism behind the recent protests on the Bundy Ranch in Nevada. Goldstein traces a common perspective linking the Klan, the Posse Comitatus, the '90s militia movement, the Tea Party and the groups out in force at the protests over one man's desire to continue illegal grazing on federal lands. Well worth the 5 minute diversion!

-- Michael Burger    

April 24, 2014 | Permalink | TrackBack (0)

Monday, April 21, 2014

Missouri Landowners Seeking a "Double Take" from Taxpayers

Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution.  Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves. They’re likely to be disappointed.

Lawsuits seeking recovery of flood damages from the federal government almost always fail.  First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act.  However, this claim is just as unlikely to stick, for good reason.  As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees.  This is because the impact is neither a “permanent physical occupation” of the property by the government, nor is it an excessive regulation that deprives property of “all economically beneficial use” or has otherwise gone “too far” in adversely affecting reasonable investment-backed expectations of the floodplain owners (in the words of the U.S. Supreme Court). It is simply not reasonable to settle in the floodplain and expect that the property will never flood.

These plaintiffs are attempting to bring their claims within the purview of a 2012 Supreme Court case, Arkansas FGC v. U.S, where a landowner (the State Fish & Game Commission) prevailed on its claim that the Corps had physically taken a flowage easement over its land.  The case raised a unique set of facts and the decision is a remarkably narrow one, and it is completely inapposite to what happened on the Missouri River.  Here’s why.

In Arkansas, the Corps opted to depart from its Water Control Plan for the dam in question by releasing water over longer periods each year during a seven-year period, not because of any physical imperative (e.g., unusual amounts of rain or snow) but because farmers urged it to do so to keep their croplands dry for longer periods during harvests.  The deviation caused a dramatic increase in flooding in a wildlife management area owned by the State, causing widespread and permanent damage to its trees.  The flooding was significant enough, for long enough periods, to change the character of the area and to substantially interfere with the State’s ability to use its land.  The Corps had effectively taken title to the land without going through the appropriate processes for exercising the government’s power of eminent domain.

In stark contrast to the 2011 Missouri River flood, the Corps’ intentional flooding of Arkansas’s land was the direct and proximate cause of the foreseeable destruction of the State’s property.  The Corps deviated from its Arkansas Plan in order to benefit the farmers, when it knew (or should have known) that the deviation would inevitably destroy the State’s land.  The Corps created winners and losers, and the Supreme Court forced it to pay the loser.

On the Missouri, the 2011 flood made losers out of just about everyone.  The Corps’ flood control structures were taxed to their limits by unprecedented amounts of snowmelt and rain over a long period of time in the spring and summer of 2011.  In April, Rocky Mountain snowpack was 140% of normal; later in the summer, rainfall was three to six times normal in the upper Missouri River Basin. At Sioux City, Iowa (the demarcation between the upper and lower river), runoff measured 13.8 million acre feet (MAF), smashing the old 1952 record of 13.2 MAF.  The third wettest month ever documented on the Missouri River happened to be May 2011 (10.5 MAF) and the fifth wettest was July 2011 (10 MAF).  See National Weather Service, The Historic Missouri River Flood of 2011; Senate Report 112-075 - Energy and Water Development Appropriations Bill, 2012.  That water had to go somewhere, and once the dams were filled to capacity, it went downstream and into the floodplain, as rivers naturally do (especially the Missouri, which is widely known for its flood-prone tendencies).

The plaintiffs argue that the Corps has abandoned its flood control mission in favor of other priorities on the Missouri River.  Specifically, they claim that the Corps kept the reservoirs full in the spring to benefit recreation and endangered species, and that fuller reservoirs means less storage for flood waters. The factual record doesn’t back them up, and the law is more nuanced than they allege.  In truth, Congress directed the Corps to build the dams and manage the system for seven purposes in addition to flood control: navigation; hydropower; water quality; water supply; irrigation; recreation; and fish and wildlife.  Flood control and navigation may be toward the top of the list, but they are far from the only concerns that drive river management.  More to the point, none of the other purposes were prioritized at the expense of flood control in 2011.  The Missouri River system was operated in accordance with the Master River Manual in response to abnormal snowmelt and rainfall that just kept coming for months on end.  The operations were dictated by conditions, not by other priorities.  Sometimes, the river simply reclaims its floodplain, despite human efforts to hold it back.

The tired refrain that the government elevated the concerns of fish over people is a red herring. The real problem is that people wanted to settle in the floodplain, so the federal government undertook flood control, which prompted more people to move into harm’s way. It’s ironic that the landowners who cry “foul” today have received a bounty of flood control-related benefits from the government through the years.  No doubt the flood damage to their properties in 2011 would have been worse if the federal government hadn’t built dams and other structures on the Missouri River.  Consider the 1993 flood, which set the record for the highest water level in Kansas City, but resulted in much lower discharges (flooding) than pre-dam floods in the 1800s and early to mid-1900s.

Meanwhile, individuals and communities who chose to reside in the floodplain demanded additional protection through the construction of levees, dikes, and revetments on the river and its tributaries, along with subsidized flood and crop insurance.  Once they put themselves in harm’s way (aided and abetted by government), it’s only natural for sympathetic officials to provide federally funded disaster relief when the inevitable happens.  These are policy choices that the government and floodplain communities have made throughout the many years of floodplain occupation, and we can argue the pros and cons of these choices until we’re out of breath without ever reaching a consensus.  Don’t get us wrong—no one wants to see human suffering in the wake of a flood. But adding a constitutional takings claim to the list of government payouts demanded by property owners is a wholly unwarranted sort of “double take” from the government (and the taxpayers) (see Unnatural Disasters Chapter 10).  Instead, we should be talking about how to make people safer, how to make buildings more flood resilient, and about cases where it is more prudent to retreat from the floodplain and out of harm’s way. 

- Sandi Zellmer

April 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Global Environmental Constitutionalism Symposium at Widener Law

Global Env. Constitutionalism

On Friday, April 11, I blogged live from the Global Environmental Constitutionalism Symposium held at Widener Law in Delaware. A remarkable group of scholars from Australia, the Bahamas, Columbia, New Zealand, Canada, the Philippines, Italy, Israel, South Africa, France, Nigeria, and the United States converged to discuss the value of incorporating environmental rights and protections for resources explicitly within the text of national and subnational constitutions. 

Klaus Bosselmann, of the University of Auckland Faculty of Law, provided an overview of the different typologies of eco-constitutionalism, and the many different forms that it might take - from loose models focused on connections between economics and the environment (i.e. "sustainable development") to more robust models prioritizing ecological limitations and systems over protection of other rights, such as those related to economics (since sound economics depends upon a healthy environment). Germany has moved along this spectrum toward the latter, with the German Constitution "greening" over time with a number of environmental amendments. This shift, of course, has manifested in the aggressive renewable energy targets established by the German Renewable Energy Act of 2000, among other shifts in German policies related to the environment. Bosselmann believes more comparative work needs to be done between "green" constitutions globally and that society should consider exploring whether a global or international environmental constitution is emerging that would be a natural extension of increased globalization over recent decades. We have a number of global environmental agreements - is there enough cohesiveness to see a global environmental constitution emerging?

Don Anton, of the Australian National University College of Law, discussed regions of the world where environmental constitutionalism is most needed, but where it has currently not gained a foothold - that is, liberal economically advanced nations. Market economies, such as Australia, the United States, and many nations in Europe do not have environmental constitutional protections. Anton has long argued for incorporating environmental constitutionalism into these nations and doing so to protect the environment or resources per se. Having not seen sufficient action in that area, however, he argues for a pragmatic incrementalism that establishes protection of human rights to environmental quality in an environmental bill of rights detailing limits on government and private actions related to the balance of economic and environmental priorities. One of the reasons he believes this approach is more likely to succeed is because such provisions effectively extend already established and well-respected notions of due process that inform other bills of rights (like the U.S.), but they just happen to be in an environmental context. Contrast this to the Christopher Stone approach of protecting trees for their own sake, which may be a much harder argument to make, at least in the current political climate. So, Anton would focus on procedural protections for how humans interact with the environment as a first step. Procedural rights receive widespread support internationally, so an incremental move toward environmental bills of rights may be able to capitalize on this inertia.

Erin Daly, constitutional law scholar at Widener Law, notes the lack of environmental constitutionalism in the text of the U.S. Constitution, and that it relies solely on judicial interpretation for limited direct effect on environmental policy. Daly then describes the recent Robinson Township case and how the Pennsylvania Supreme Court's decision went a long way toward demonstrating the potential of environmental constitutionalism within states in the U.S. (and elsewhere).

Badrinath Rao, of Kettering University, notes that developing nations like India and China are inextricably wedded to neoliberalism, and so environmental constitutionalism is of increasing importance. The Supreme Court of India has recognized the right to a clean environment under Article 21 of the constitution. The court has also incorporated notions of sustainable development, intergenerational equity, the precautionary principle, polluter pays principles, and even environmental impact assessments within its jurisprudence. The Indian Supreme Court has made a number of rulings advancing environmental protections, yet problems remain. Government bodies and private entities have ignored environmental rights recognized by the court. Complicating the issue is different views on what "right to a clean and healthy environment" means, the fact that many supreme court mandates are difficult to implement, and ideology that has pervaded the court and governmental systems. Rao ultimately asks if the judiciary is the best institution to facilitate environmental constitutionalism, and whether a fixation with neoliberal capitalism will ultimately hinder the creation of important environmental rights.

Afshin Akhtarkhavari, of the Griffith University Law School, argues that the right to water is potentially problematic when weighed against other rights, especially in post-conflict contexts, such as South Sudan. The "right to water" discussion can actually escalate conflict itself in water scarce regions. One concern is that the rhetoric of the conversation has been co-opted by special interests who would use the argument to gain control over water resources.

Itzchak Kornfeld, of the Hebrew University of Jerusalem Faculty of Law, argues that having a right to water is largely unenforceable, but is nonetheless gaining some traction in certain areas. Western neoliberalism has given rise to calls for controlling or conquering resources, whereas aboriginal cultures maintained a very different relationship to the environment. And we are starting to see these two worldviews clash. In particular the nomadic Bedouin have survived for hundreds of years in areas of scarce water supply. Yet today they do not receive a number of recognized rights that the remaining Israeli population receives. In a recent court case, a group of Bedouin sued for water rights, and the district court ruled against them. The case worked its way up to the supreme court, which said there are three normative rights for water: 1) the right under "regular" Israeli law and customary domestic and international law, 2) a constitutional right for water (though not explicit; rather it was found under the constitutional "right to dignity"), 3) and a legislative right. The court laid such a broad foundation in order to legitimate its ruling. So by bringing in international human rights and other globally recognized rights to water, the court was trying to support what was otherwise a shaky domestic legal ground for finding a water right for the Bedouin under the circumstances of the case. This represents how international law might infuse itself into domestic constitutional law in a way that protects environmental rights.

John Dernbach, of Widener Law, talked about the recent Robinson Township case, which involved a state statute that effectively preempted and prohibited local government restrictions on fracking activities in Pennsylvania. The Supreme Court of Pennsylvania held that the preemption was a violation of the "Environmental Rights Amendment" of the Pennsylvania Constitution. The amendment states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Historically, courts have basically ruled that the amendment only applies when the legislature invokes it. So this opinion, even though a plurality opinion as to the reasoning, reinvigorated the status of constitutional environmental rights in state constitutions in the U.S. [NOTE: Dernbach was instrumental in providing the foundation for the court's finding. He had laid the foundation many year's before the court's ruling. The court's reasoning finally caught up to his foresight regarding the appropriate interpretation of the law].

Jack Tuholske, who teaches at Vermont Law when not practicing public interest environmental law in Montana, discussed from a litigator's perspective a number of states that have environmental constitutional rights, and how they have been enforced with varying degrees of success. Tuholske tells a "tale of two states": Illinois and Montana. Each developed their constitutional environmental rights in the early 1970's, during the time of the greening of American law. Illinois has subsequently seen some pretty sloppy court decisions regarding its own provisions. In effect, the courts have limited the constitutional provision to only creating standing rights and allows any limitations on that standing to be implemented as the Illinois legislature sees fit. This has "emasculated" the provision in Illinois. Montana is a different story. The courts in Montana have actually applied strict scrutiny to statutes that might violate Montana's constitutional environmental provision. The value of these cases in Montana is far more than the court's holding because environmental constitutionalism has become part of the state's public discourse and culture going forward.

Professor Catherine Iorns Magallanes, of the Victoria University of Wellington, also focused on indigenous notions of the human relationship with the environment - that humans could not own or dominate nature, and that the western world has largely tried to undo this notion. Global environmental constitutionalism encapsulates an effort to regain original, pre-western notions of our relationship to the environment. She reiterated Don Anton's point that while it might work to protect nature itself through constitutional provisions, a more practical first step is to protect people's rights in the environment, since it is more likely to gain traction. She highlighted legislation in New Zealand that actually incorporates native Mauri notions of the human relationship with the environment (and even incorporates Mauri language) to protect a number of rivers in the nation. The legislative definition of one river states that: "Te Awa Tupua comprises the Whanganui River as an indivisible and living whole, from the mountains to the see, incorporating its tributaries and all its physical and metaphysical elements." It allows the Mauri to speak on behalf of the river. Similarly Te Urewera is a forested area in northern New Zealand. The government settled with the Mauri and recognized the forest as the ancestor of the Mauri (with the Mauri being the descendants). The actual legislation states that Te Urewera "is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty," that it is "a place of spiritual value, with its own mana and mauri," and that it "has an identity in and of itself inspiring people to commit to its care." This, she argues, tries to take us back to original indigenous perspectives on the relationship between humans and the environment.

Dante Gatmaytan, of the University of the Philippines College of Law, gave a presentation titled "Dead End," which expressed his view that the environmental constitutional rights provisions embedded in the Philippine Constitution have effectively become ineffectual. He argues that constitutional provisions do not matter if you do not have procedures in place allowing citizens to enforce them. In the Philippines it is standing that gets in the way. Also, other constitutional doctrines may get in the way of environmental provisions, as is the case in the Philippines, and those should be changed to allow environmental provisions to be efficacious.

A number of other fantastic speakers presented, though I was unable to attend all of the presentations and break-out sessions and capture all of those thoughts (the above summaries are also my interpretation of presenter thoughts, and may not be entirely accurate!).

As for my talk, I presented on "Structural Environmental Constitutionalism." My primary point was that much of the focus of environmental constitutionalism scholarship is on "fundamental environmental constitutionalism," which are provisions related to protecting certain resources or citizen rights in the environment. These are undoubtedly important. But structural constitutionalism is just as important, if not more - that is, how environmental governance authority is allocated across levels of government. This problem manifests particularly in federal systems, where nested constitutionally created legal systems exist. Sometimes structural environmental constitutionalism manifests in explicit constitutional text, such as in Brazil, Russia, and India where the central (federal) government is granted ultimate control over forest resources. Or it may manifest through judicial interpretation, as in the United States where federal environmental authority is construed under the Commerce Clause. Sometimes that authority is called into question, as the Supreme Court did with regard to any future "isolated wetlands" regulation that the federal government might engage in (dicta from the SWANCC and Rapanos cases). Finally, it may manifest through legislative enactments made pursuant to constitutional provisions. This happens when state governments seek to constitutionally retrieve from local governments previous grants of regulatory authority, such as when Pennsylvania attempted to preempt local government regulation of fracking (at issue in Robinson Township). Many implications arise from structural environmental constitutionalism. First, where there is an imbalance in environmental management authority across scales, correcting it can result in better management. This is the point of the emerging literature on dynamic federalism. In addition, structural adjustments to environmental regulatory authority may be more efficacious than fundamental environmental constitutionalism in some circumstances, as I have previously argued, and building off of J.B. Ruhl's work. Structural environmental constitutionalism might also bolster the efficacy of fundamental constitutionalism to the extent that latter provisions are being ignored. If levels of government previously unempowered to manage resources gain that control, then fundamental environmental provisions may be taken more seriously across all scales. Many more implications of structural environmental constitutionalism exist, and you can see the forthcoming issue of the Widener Law Review for greater detail on my arguments and the arguments of the presenters above.

Overall it was a fantastic conference and a great opportunity to hear the perspectives of the global community on this important issue. Thanks to all at Widener Law who made the conference possible.

- Blake Hudson

(David Hodas and Bob Percival present at the closing plenary):

Untitled

April 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Energy Law Symposium on Emerging Business and Regulatory Models

The San Diego Journal of Climate and Energy Law just announced its upcoming symposium.  Here's the conference description and a call for papers:

Proposals Due: Monday, April 21, 2014

On Friday, November 7, 2014, the University of San Diego School of Law will host its Sixth Annual Climate & Energy Law Symposium.

You are invited to submit a title and abstract of an article that you can present at the symposium and publish in the sixth volume of the San Diego Journal of Climate & Energy Law. If we select your proposal, the university will pay for all travel expenses to and from the symposium. You must submit your completed article to the journal’s editors by Monday, December 8, 2014, for consideration in the journal's sixth volume. View agendas and webcasts of past symposia online.

THEME FOR 2014 CLIMATE & ENERGY LAW SYMPOSIUM

The theme for the 2014 Climate & Energy Law Symposium is "Innovative Regulatory and Business Models in a Changing Electric Industry."

Regulatory frameworks and business models for electric utilities developed decades ago, and the fundamentals of the landscape are changing. Public policy, technological, and economic shifts are undermining the logic of the current system. Policies to encourage energy efficiency, increase renewable energy production, and reduce greenhouse gas emissions are changing the context in which the industry operates. Technological innovations, including distributed photovoltaics, smart meters, and energy storage are enabling customers to understand and control their energy needs. Slower economic growth, increased efficiency, and more distributed generation are contributing to slower load growth. The confluence of these factors presents challenges and opportunities for the electric industry

Academic and policy experts will analyze and assess three aspects of this complex issue:

  1. Regulatory Changes
  2. Utility Business Models
  3. Market Structures

All article proposals related to these broad issues in climate and energy law are welcome. It is not necessary for an article to focus specifically on California law and policy. If you are interested in participating, please submit the following materials to Zachary Flati, editor-in-chief of the San Diego Journal of Climate & Energy Law, at zflati-11@sandiego.edu:

  1. The proposed title of your article and a brief 300-word abstract
  2. Your CV
  3. Written acknowledgement that you will attend the symposium on Friday, November 7, 2014, and submit a complete draft of your article to theSan Diego Journal of Climate & Energy Law by Monday, December 8, 2014.

The University of San Diego Climate & Energy Law Symposium is co-hosted by the Energy Policy Initiatives Center and the San Diego Journal of Climate & Energy Law.

Please submit your proposal by Monday, April 21, 2014.

MORE INFORMATION

Visit the call for proposal webpage for more details. For questions, email the editor-in-chief or call (619) 260-4589.

April 9, 2014 | Permalink | TrackBack (0)

Tuesday, April 8, 2014

Why Take Environmental Law?

Across the country, law students are registering for their fall courses, and some of them are choosing whether or not to take environmental law.  This, then, is a good time to make the case for enrolling in the course.  The target of my argument isn’t the student who is determined to make a career in environmental law (and, therefore, the kind of student who actually might read this blog, but never mind that).  I’m assuming those students will take a basic environmental law class, and several other related courses as well.  Instead, it’s the student with a passing or uncertain interest in the subject.

I think there really are three primary reasons why environmental law remains a course well worth taking.

The continued importance of environmental law practice.  A few years ago, many people thought that the environmental law field was primed for expansion, with new climate change laws likely serving as the key driver of the change.  That hasn’t happened.  On the whole the field doesn’t seem to be growing, and the economic downturn’s impacts on development activity translated into less work for environmental lawyers.  But the field also isn’t going away.  Environmental due diligence remains a crucial part of almost every commercial real estate transaction and or corporate merger; Clean Water Act and Clean Air Act compliance still generate lots of work; and both governmental and non-governmental enforcement still generate many cases.  The environmental law boom of the 1980s will probably never recur, but there still will be work.

The continued relevance of environmental law has implications for students who intend to focus primarily in this area, and it also matters to students who intend to enter other fields.  For example, future real estate lawyers, corporate transactional lawyers, energy lawyers, and state or local government lawyers all are likely to encounter environmental law over the course of their careers, and they’ll be stronger within their core practice areas if they have some prior understanding about how environmental law works.

The skills.  Among many students, I suspect there’s a belief that environmental law is something of a warm, fuzzy, and esoteric subject—fun to study, but not particularly practical.  The reality is nearly the opposite.  Environmental law is in large part a course about statutory and regulatory interpretation, and interpreting dense, somewhat technical statutes and rules isn’t warm and fuzzy at all.  The course is actually pretty hard work, even though most of us who teach it work hard to make it interesting.  But interpreting statutes and regulations forms the core of modern legal practice, and a student who takes environmental law therefore will develop and refine skills that will be useful in fields ranging from tax to immigration.

The importance of the subject matter.  One reason that environmental practice isn’t going away is that environmental issues aren’t going away.  They might not rise to the top of the general public’s list of concerns.  But we breathe air, drink water, and consume natural resources constantly, and all of those activities make us both beneficiaries of environmental protection and contributors to environmental degradation.  And if anyone doubts the importance of law to environmental protection, a quick review of this remarkable series of posts ought to provide a compelling reminder that we are surrounded by experiments in the non-development, or non-implementation, of environmental law, and those experiments generally do not go well.  Similarly, the 40-year history of environmental law shows that designing law that effectively responds to these problems is no easy task, even if those laws are backed by the best of intentions.  We still need people--lots of them--who understand the intricacies of this field.

- Dave Owen

April 8, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 2, 2014

Hungry Hungry Hippos

This is brilliant.

-Dave Owen

April 2, 2014 | Permalink | Comments (1) | TrackBack (0)