Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Friday, December 14, 2012
Rethinking Sustainable Development, ELC Essay #10: What Does Sustainability Mean in the Age of Climate Change?
Sustainable development traditionally demands that we meet future generations’ needs without sacrificing the current generation’s needs. Since climate disruption already promises to compromise both current and future generations’ needs, climate disruption demands a refinement of our understanding of sustainable development. I would suggest that sustainable development demands approximating this ideal of meeting current and future generations’ needs as best we can, by minimizing damage to our attempt to meet the basic needs of both future and current generations. Concretely, this requires a transition to a zero-fossil-fuel economy as quickly as we can, while generating (probably through a carbon tax or sale of allowances) sufficient revenue to fund adaptation both here and in developing countries that will bear the most serious consequences. A fossil-fuel economy is not sustainable, because the resources it relies upon are not renewable and because carbon dioxide harms this generation and threatens to destroy future generations. Herman Daly’s definition of sustainability as demanding harvesting of renewable resources that do not exceed the rates at which these resources replace themselves probably needs revision in light of climate disruption. For resources that we need as carbon sinks or that are already dangerously depleted, we may need to embrace growth in the resource (when possible), rather than a steady state.
In the United States, the political constraints on moving toward zero fossil fuels appear so formidable that it’s hard to think about a key question this leads to: What does sustainability teach us about managing the costs of a transition to zero fossil fuels? But it’s a philosophically important question and will become practically important even in this country if the politics change significantly. First, the concept of sustainable development rules out delaying a transition to zero fossil fuels because of undifferentiated concerns about costs. For that reason, cost-benefit analysis does not help much in analyzing a policy’s sustainability. Sustainability concerns itself with meeting people’s basic needs, however we define that, and embraces sustaining quite significant decreases in surplus wealth if necessary to meet the basic needs of future generations (or this one). At the same time, sustainable development requires some attention to easing transitional impacts on low-income people and to ameliorating impacts associated with dislocating workers in the fossil-fuel industry, even if the green economy generates more jobs than we lose.
My own work has been primarily focused on the problem of operationalizing sustainability (or something like it) when crafting pollution control policies and other policies affecting development (e.g. financial regulation). Sustainability demands changes in the focus, goals, and methods we bring to bear on almost all areas of law. It requires a focus on the shape of change over time, rather than near term costs and benefits. It suggests a goal of avoiding systemic risk, not achieving efficiency at the margin. And it invites an analysis of economic incentives that aims at efficacy in avoiding systemic risk, by asking how government actions will influence the actions of boundedly rational institutions and individuals responding to incomplete information.
The principal advantage of this elaboration involves its ability to directly address the pathologies emanating from neoclassical law and economics and to make the sustainability concept meaningful in other areas of law that influence development. One might argue that the deregulation of the financial industry advanced sustainable development, as it precipitated a rapid decline in carbon emissions as the economy collapsed. I would reject that conclusion on the grounds that it harms our efforts to meet current basic needs. We need to maintain basic social as well as environmental systems even as we drastically change the economy’s material basis and financial structure, as the goal of avoiding systemic risks implies. The economic dynamic concept described above (and elaborated in more detail in The Economic Dynamics of Law (Cambridge University Press 2012)) captures the change in thinking about how government operates that we will need to move us toward sustainability in the era of climate disruption.
-- David M. Driesen
Thursday, July 5, 2012
Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people. (This is the fifth in my series of reports from the field about the environmental experiences of an environmental law professor in China—for the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, and May’s exploration of water quality issues.)
While preparing for our year in China, we wondered what we should bring with us from home. Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were. It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world. What’s not true is that they are available for purchase in China. As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption. In fact, it’s illegal to sell goods produced for export on the domestic market. And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.
Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time. Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it. Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development. In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai and Shenzhen, or the northern city of Qingdao, where we live. But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.
Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago. And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone. Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters. Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives. As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.
This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day. Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own. And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire.
Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint. Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys. As the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case. But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety. You can’t just pull everything out, just in case. There will be nothing left.
In China, the most troubling examples relate to food safety. In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products. The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure). Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market.
I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.) These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China. We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.
Baby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families. But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels. The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects. Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s. But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.
(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country. And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now. Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)
China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively. The United States has been here before as well, and it may just be a necessary part of the process of economic development. But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development. The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards. And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export!
Because milk is just the tip of this iceberg. Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics. This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct. From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long. Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it).
I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S. It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products. I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms). I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class. He responded that, yes, if he were a Chinese official, he would probably do the same thing. But as a Chinese consumer, all he really wanted were some quality shoes.
Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much. My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side. If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?
Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural. In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant. I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases. But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant. In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity.
In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses. The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires. Similarly costly are the traffic-related mortalities that are unfortunately common here. Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance. (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!) Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.
Yet this is only part of the story. Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture. Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines. Healthful living is a huge and important part of Chinese culture, and among its most admirable. Chinese people eat dried fruits and nuts instead of cheese doodles. They rest regularly and sleep well at night. Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life.
I don’t just mean that Chinese people are in better shape because fewer have cars and must walk where Americans usually drive, although that’s also true. Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans. In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi. Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen. After dinner, families take a ritual “digestive” walk around the neighborhood together. Then begins evening exercise, when people again gather in public areas for a variety of activities. Children play openly while men play team sports. Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music. We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age. They are frequently used, especially after work, by young and old alike.
So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught. Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates. Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change. But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most.
July 5, 2012 in Asia, Current Affairs, Economics, Governance/Management, International, Law, Social Science, Sustainability, Toxic and Hazardous Substances, Travel | Permalink | Comments (0) | TrackBack (0)
Friday, March 9, 2012
"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
- "Every second breath you take is provided by the ocean."
- "We have entered a new geologic age -- the anthropocene era."
- "The Gulf and other coastal waters have long been a dumping ground for human activities."
- "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."
- NOAA "has begun now issuing seasonal red tide alerts in the Northeast."
- "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."
- "It's not funded, but we have a national ocean policy."
- "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."
- "The economic benefit of the ocean is huge, and it is just beginning to be documented."
- "Everyone has a stake in the oceans."
- "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.
- "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.
- "Marine mammal issues will increasingly affect marine activities, especially shipping."
- "We need to balance that growing need for resources and food and energy with those areas that already have resources."
- "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."
"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law
- "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."
- "The problem is we have one ocean but many governments."
- "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."
- "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."
- "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."
- "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.
- Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.
- "Australia is also using the Reef as a reason to engage in climate change mitigation."
- An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).
March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, March 5, 2012
The Prime Minister of India, Dr. Manmohan Singh has for long enjoyed a reputation as a rare type of politician. In a country where politics are cloaked with corruption problems, he has stood out as a politician of serious intellectual rigor, humble demeanor, and personal integrity. Recently, however, Dr. Singh gave in to a rather unexpected frustration when he decried American NGO-funded support for protests against the nuclear power plant in Kudankulam in Tamil Nadu and the use of genetically modified crops in India. These NGOs, Dr. Singh argued, did not understand the energy needs of India. He emphasized that the nuclear power plant could not be left idle and had to move forward. Additionally, cases have apparently been filed against four NGOs for alleged misuse of foreign donations to fund protest, and 77 foreign NGOs listed in a government watch list. (The newsreport can be found here).
In a follow up to the Prime Minister’s comments, US charge d’affaires Peter Burleigh reportedly responded that the United States would comment after verifying the factual accuracy of the statement. Russian Ambassador Alexander Kadakin, however, felt no such compunction. Ambassador Kadakin reportedly responded that the Russian administration had suspected such funding, particularly since the protests began following the Fukushima tragedy and not before the accident. (the report can be found here).
Indian NGOs reportedly responded with a letter addressed to the Prime Minister Singh’s remarks and by bringing legal action. A group of NGOs including a former Indian Supreme Court judge, former Chairperson of the Atomic Energy Regulatory Board, and former Union Power Secretary wrote a letter to the Prime Minister (the report and letter can be found here), challenging the undemocratic underpinnings of the Prime Minister’s remark. They provocatively added, “We are not China.” The head of another NGO filed a defamation action against the Prime Minister for labeling their efforts as a foreign plot or agenda. (report can be found here)
The main question, though, is this: so what if environmental protests are funded by foreign NGOs?
Barring a few restrictions, it is not illegal to provide funding to civil society in India. Unless there are accounting illegalities, there is no reason that local communities should not be legally funded by those with a shared concern. By all means the Indian government could try to enact legislation prohibiting foreigners to fund local civil society initiatives. Of course, such an effort would be ironic considering that foreign investors are vested in nuclear power plants. Surely, Ambassador Kadakin’s concern did not stem so much from his altruistic interest in India’s energy needs as it did from the fact that the Nuclear Power Corporation of India Limited had planned to collaborate with Russia in building two nuclear power plants.
It would be equally ironic that the government, which few months back battled to allow foreign direct investment in India, would oppose foreign funding for supporting civil society endeavors. It is certainly not something that one would expect from Dr. Manmohan Singh, a major architect of India’s economic liberalization reforms.
Let me add, however, that India indeed faces a steep challenge in meeting its energy needs. Millions remain without basic power infrastructure. The sub-continent has limited natural energy resources and has to rely on foreign supplies. Of late, its ability to import oil from Iran has been greatly impeded by foreign sanctions that have limited its ability to make payments to the government. (see report here). India faces serious energy predicament, even as growth rates drop and competition consistently looms across the border from China. Prime Minister Singh is certainly not in a pretty spot right now.
However, questioning legal and peaceful protests by concerned members of the civil society is not the solution. The need of the hour is transparency and efforts by the government to explain and persuade those living in the vicinity of a nuclear power plant of its safety. As we near the first anniversary of the 2011 Japanese Tsunami (March 11), we cannot ignore or wish away the terrifying moment when the nuclear plants in Japan did not shut down. We cannot ignore how Japan’s tragedy paralyzed the world, including its economy. Japanese continue to grapple with radiation challenges. That is the state in an economically developed nation.
Further, as the challenge to the U.S. Nuclear Regulatory Commission’s approval of the two nuclear power plants in Georgia by the Tulane Environmental Law Center for failing to consider the effect of the Fukushima tragedy in the EIA demonstrates, convincing people that nuclear energy is safe is not going to be a cakewalk in a post Fukushima world. The promise of electricity is alluring. But, it is no match to the fear of potential annihilation. Such promise must be backed by technology, sound safety procedures, effective compensation schemes, and legitimate efforts to engage in dialogue. Democratic governance has its own price.
Monday, February 20, 2012
Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?
The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.
1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.
2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.
3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.
Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.
Friday, February 10, 2012
Increasingly, I find it important to bring the practical into the classroom. To be upfront, this view is not new for me. I joined the academy with the presumption that deep theory, legal doctrine, and careful analysis cannot stand alone; the best learning couples heavy doses of those with the real world. Five years in, consistent feedback from students and the bar have overwhelmingly confirmed what I initially assumed. At least some professors also seem to agree.
Injecting the practical is comparatively easy in some courses. In my civil procedure class, for instance, I am constantly trying to find ways to help students see that the rules are not just principles; they are tools that you can only truly understand if you pick them up and use them repeatedly. In the litigation context, avenues for making this clear are both discrete and fairly digestible, even in the first semester. Students in my class attend two court proceedings. They draft a complaint or an answer. They write a set of discovery. They complete a CALI exercise that tries to replicate the discovery process of a case. It is not uncommon on my exams for students to be asked to draft a motion, complete the next entry in a deposition transcript, or create a notice of appeal. Certainly, I have no illusions that any first-year student will leave my class a master of any of these tasks. But the hope is that by being exposed to some of them, students not only begin to gain an understanding of what litigators do on a daily basis, but also learn the material more deeply while laying a foundation of skills they will actually need in practice.
The question, then, is whether this kind of hybrid learning is also useful for more specialized, upper level law classes, particularly those in the environment, energy, and natural resource fields. More and more, I have become convinced that it is. Conceptually, this makes sense. Lawyers in any field have specific, practical skills they cannot be effective without. There is no reason this is not also true for the areas in which we teach. Having practiced for seven years, I know that's the case. The environmental lawyer is always translator: To handle a pollution case, you have to comprehend risk analysis and toxicology. To grapple with energy rates or mergers, a grasp of economics is essential. To do endangered species, biology is fundamental. In all these, an understanding of the industry the lawyer represents, or that the law at issue regulates, cannot be foregone.
The problem for the classroom, however, is twofold. First, there is a chicken-and-egg dilemma. Students cannot really dive into the details of many topics on a practical basis until they have the basics of the law under control. But getting to how that law really works is tough without practical exercises. Second, there is an allocation quandary. Every minute spent on a practical exercise deepens students’ understanding of that topic but does so at the expense of another subject area that could be covered instead. In courses that present as many fascinating issues as ours do, making this choice is often more painful—for me at least—than deciding, for example, whether to do another day on summary judgment or covering standards of review in civil procedure. At some point, moreover, too much of the practical in the classroom converts the substantive topic to a clinical one; there is a balance to find.
Nevertheless, I believe we owe it to our students to add this dimension to their understanding of the field. To that end, here are a few things we are doing in my energy law class this semester.
- Field trips to various energy sites, including to PacifiCorp’s Gadsby Power Plant earlier this week.
- Mock cost-of-service ratemaking exercises, using a hypothetical utility’s rate base, debt structure, and production costs.
- Guest lectures and case studies on actual energy controversies.
I’d be thrilled to hear what others are doing in their energy, environmental, or natural resources classes to add practical or experiential learning to the classroom.
(photo credit: S.P. Hansen)
Friday, January 27, 2012
- Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)
Tuesday, January 24, 2012
It has been nearly one year since a massive tsunami and earthquake shook Japan's nuclear plants. Up until that point nations seriously considered nuclear energy as a good alternative to meet growing energy demands and reduce GHG emissions. Government response to the incident, however, are varied. European nations, particularly Germany, which was planning to expand the life of some its plants has withdrawn such plans.China and India have no plans to scale back on their nuclear expansion program.India is slated to open one of its largest nuclear power plants in Kudankulum, Tamil Nadu, even though locals (and the Chief Minister of Tamil Nadu) are demanding proper explanation of safety checks from the Prime Minister. An news report (interview) of the issue can be found here. Similarly, in the United States, efforts to cut back on nuclear energy power remain contentious. On January 20, a Vermont District Court judge enjoined the State of Vermont from taking any action to shut down the Vermont Yankee nuclear power plant, after a State Senate vote against renewal of operations at the plant due to safety concerns was challenged. The court found that the Atomic Energy Act preempted State action. A copy of the decision can be found here .
For countries that want to pursue nuclear energy options, the motivation is economic growth. Even Germany, which has scaled back on nuclear energy, is faced with challenges of meeting its energy demands and there are reports that economic slow down in Germany coincides with its new nuclear policy. For countries such as China, India, and the United States, economic concerns govern their decision. Without a comprehensive nuclear safety policy globally, eventual nuclear power expansion appears imminent. What is required then is a close examination of nuclear energy laws, particularly in light of Japan's experience with continuing food contamination and a persisting dissatisfaction with government accountability. It is perhaps time to seriously consider, or reconsider, nuclear safety regulation.
Sunday, September 4, 2011
* The Obama administration decided to abandon proposed ozone regulations, which the oil industry and other business interests had criticized as unnecessarily costly.
* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.
* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.
* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.
* A beetle called the goldspotted oak borer is threatening trees in southern California.
* President Obama is pushing for a transportation spending bill, to fund federal highway projects and keep fuel taxes in place.
Friday, September 2, 2011
If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed. In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:
I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
This decision is interesting for a number of reasons. Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008. Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance. Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.
The decision also shows Obama's cold calculus about who will and will not be on his side in the next election. Environmentalists already have decried this move. But will they vote for him anyway in 2012? The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised.
And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns. In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection. The two go hand in hand. This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis. True sustainability requires both. Is this change a permanent shift or a temporary slide? Only time will tell.
Friday, August 26, 2011
The most recent edition of the ABA Journal inspired me. Its cover story is the feature "30 Lawyers Pick 30 Books Every Lawyer Should Read."
This got me thinking. What are the must-read energy, or energy law and policy, books out there?
Looking around a little, I found one person's answer. Alexis Madrigal, senior editor at The Atlantic and author of Powering the Dream: The History and Promise of Green Technology, came up with these "13 Energy Books You Need to Read":
- Consuming Power by David Nye
- Petrolia by Brian Black
- The Prize by Daniel Yergin
- Energy Policy in America Since 1945 by Richard Vietor
- Technology and Transformation in the American Electric Utility Industry by Richard Hirsh
- The Bulldozer in the Countryside by Adam Rome
- Soft Energy Paths by Amory Lovins
- Energy at the Crossroads by Vaclav Smil
- Hubbert’s Peak by Ken Deffeyes
- A Golden Thread by Ken Butti and John Perlin
- Sorry Out of Gas: Architecture’s Response to the 1973 Oil Crisis by the Canadian Centre for Architecture
- Wind Energy Comes of Age by Paul Gipe
- The Discovery of Global Warming by Spencer Weart
Madrigal's is a fascinating, insightful list. I'm still wondering: what's my list of must-read energy and energy law/policy books?
More to the point, what's yours?
Monday, June 27, 2011
As I got deeper and deeper into my Natural Resources Law and Policy material on water, I lamented to a friend that "we just don't have enough water." My friend, an economist, said "no, we just don't have enough properly priced water." My concern was driven by a Scientific American article about the Ogallala Aquifer, which supports the breadbasket of the world and stretches all the way from South Dakota to Texas. In West Texas alone, the number of irrigation wells grew from 1,166 in 1937 to more than
66,000 in 1971. The overdraft of the aquifer in 1975 was equivalent to the entire flow of the Colorado River, but today the aquifer is being depleted at an annual volume equivalent to 18 Colorado Rivers. In some places agriculture is withdrawing four to six feet a year, and nature is putting back half an inch. Natural aquifer recharge would would take 6,000 years if it were to be fully drained.
In a fascinating guest post on freakonomics.com, Charles Fishman describes some of the drivers of water overconsumption within the context of a very interesting case study. Fishman highlights a move by the National Basketball Association's Cleveland Cavaliers to remove all of the 18 water fountains in Quicken Loans Arena (the "Q"). As an alternative to the water fountains - which, of course, provided free water - the organization directed people to free cups of water available in the concession stands, or patrons could purchase a $4 bottle of Aquafina. Of course, to receive either of those options, people had to be willing to stand in line - which can be a lengthy proposition at a sporting event. Three months passed, and over 1 million spectators attended events in the Q with not one complaint. About halfway through the NBA season, however, a newspaper reported the removal of the water fountains. The fans were furious, even though the Q had sold out 29 home games prior to fans' awareness of the removal. The Q scrambled to put the water fountains back in.
This story demonstrates, first, the entitlement people feel toward things that they obviously do not need - which is a disturbing commentary on the societal drivers of overconsumption and environmental degradation as a general matter. But second, the story raises some very interesting facts about water and why we should consider paying more for it. Fishman notes that if you buy a 17 ounce bottle of water for $0.99, you could take it home and continuously refill it every day with tap water for 6 years before you spent $0.99 on that amount of tap water! Even cheap bottled water is 2,000 times more expensive than tap water at home. This demonstrates an amazing disparity between what we are willing to pay for water when we are at sporting events, on road trips, going to the beach, etc., and what we are not willing to pay, and indeed feel entitled to, in our homes - the place where most water overconsumption occurs. Fishman notes that "[R]esidents act as if increasing the water bill from $23 a month to $30 a month will force them to choose between their heart medicine and their water," even though the average household water bill in the U.S. is less than half the average cable TV or cell phone bill.
Though there are obviously big problems with bottled water - not to mention the toxic chemical and waste disposal issues posed by the plastic used to manufacture them - when considering overconsumption of water it may be useful not to rely too heavily on conventional wisdom ("convenient wisdom") regarding the parcelization of water resources. As Fishman notes, "'Free' is the wrong price for water. In fact, the lack of a price for routine water service is the most important thing that’s wrong with water — resources that are free are wasted; there’s no incentive to learn to use them smartly; there’s no money to maintain and modernize the existing water system; there’s no incentive to reach back and protect the source of something that’s free."
- Blake Hudson
Thursday, June 23, 2011
Earlier this week, it was hard to tell whether the cries coming from southern California were of joy or despair. San Diego Gas & Electric is in the process of building a massive transmission line from the Imperial Valley to its load center in San Diego. Increasingly, it looks like SDG&E will be able to fend off the numerous legal challenges to the project and bring scores of renewable electrons home.
The Sunrise Powerlink project is, by any measure, impressive. According to SDG&E, the line will run nearly 120 miles. It will cost almost $2 billion to build. It will create hundreds of construction jobs and "thousands" of jobs in renewable energy. It should save consumers $100 million annually. It will give SDG&E access to numerous renewables projects. And it will have a capacity of 1,000 MW, enough to power "650,000 homes."
All this sounds like a good thing. One would think so. It is well established that one of the biggest impediments to renewables is the need for more transmission lines -- lots of them in many places. On that score, the Sunrise Powerlink project should be most welcome news. SDG&E repeatedly has pointed out that this project can only help the state achieve its renewable portfolio mandate of 33% renewable electricity by 2020.
Still, the fact that the Sunrise project has been plagued by litigation highlights the contentious natureof completing any large energy developmenttoday. NIMBYism reigns not only when developments harm the environment but also when they help. Companies building environmentally beneficial projects know well by now that environmentalism is not a proper noun, a capitalized word representing a unified front. It's very much lower-cased; disaggregated, splintered, fractured, multifarious, subject to hijacking.
This, then, underscores three important points that are becoming more and more obvious as we, it increasingly seems, begin a transition to a more sustainable energy infrastructure. First, the process will be slow. Sunrise is all about renewables but still facesopposition. What will be the fate of more mixed projects? Second, if we are to move to renewables, legislation facilitating transmission build-outs will be extremely helpful, if not necessary. Utilities clearly prefer big, centrally planned projects. Without transmission, they can't go forward. Third, a united front will be necessary. Climate change certainly has been a galvanizing force for environmentalists over the last decade, and more. If they want meaningful progress, environmentalists cannot say no to everything. Some things have to be yes, and the yes needs to be resounding. That especially goes for projects that have both environmental and economic benefits.
Then there will be some good news indeed.
Monday, June 13, 2011
In the spirit of my colleagues posting on environmental films, and following on the Evil Animals post from last week and Professor McAllister's May 24 post on consumption, I thought I would highlight one of the most profound environmental insights in cinema (sci-fi cinema at least!). The movie "The Matrix" came out in 1999. At that time, the thought of my being involved in legal academics had never even crossed my mind, and had it done so I wouldn't even have known what that meant. Yet one clip in the movie had a deep impact on how I viewed our place in the world - and provided a theoretical framework for pushing me further along the path of environmental concern. The clip involves an interrogation of Morpheus by Agent Smith....
...The day after watching "The Matrix" I went to the Galleria Mall in Birmingham, Alabama. I stood at the top of the escalators above the food court and watched the people swarm. Hundreds of people scurried across each others' paths. Shopping bags filled with plastic and metal goodies were draped across arms, backs, and strollers. Hundreds more people sat in the food court stuffing their faces with hamburgers, chicken, pizza, cotton candy, cookies, ice cream and every other American delight you can imagine (a time release camera from 1995-2000 would have demonstrated these people getting larger as well, as the number of obese people worldwide increased by 100 million during that five year period). I couldn't help but feel the pall of depression come over me as I thought "Agent Smith was right!" And worse still I am sure I had just washed down an endorphin rush to the frontal lobe from eating an over-sized burger with an endorphin rush from purchasing some copious quantity of plastic play-things.
If everyone on earth consumed as much per capita as Americans do, we would need at least 5 earths to sustain us. I say "at least" because the number of earths we would need is increasing as our consumption increases. Stating the obvious, something needs to change.
The great thing about humans though, as the robots found out at the end of the Matrix Trilogy, is that we can think and do not always perform according to expected and established protocol. We have the ability to adapt and change and learn from past mistakes and previous destructive behaviors. Though we certainly can operate like a virus, and currently are operating like one at the rate at which we are consuming the earth, we have a chance and ability to change course.
The World Wildlife Fund's Jason Clay, in his talk "How big brands can help save biodiversity," provides some interesting insights into how we can actually harness components of our consumptive culture to protect the environment. His thoughts can be seen here:
- Blake Hudson
Thursday, June 9, 2011
A recurrent axiom in energy law today is that "efficiency is our cheapest resource." It's true. Every day, we forgo massive amounts of monetary and environmental savings we could achieve without ever building a new wind farm or replacing gasoline with natural gas, simply because our energy systems are not as efficient as they could -- or should -- be. The beautiful thing about efficiency, moreover, is that it is generally non-controversial. It's cheap. It's green. So everyone loves it.
Earlier this year, the kerfuffle in Congress over light bulb regulation drew into question the political legs of the efficiency argument. A portion of the 2007 energy bill signed by President George W. Bush -- and supported by industry -- required the phase-out of lower-efficiency incandescent light bulbs. But at least some members of this Congress, newly invigorated by the anti-regulation flare of Tea Party Republicans, took issue with this measure, using it to highlight their philosophical aims.
Now, however, at least two bills pending in Congress pack enough efficiency punchto make one forget there ever was a light bulb debate.
The first, S. 398 or the Implementation of National Consensus Appliance Agreements Act of 2011 would update existing, and institute first-time, efficiency standards for numerous appliances and devices, including refrigerators, freezers, dishwashers, clothes washers and dryers, furnaces and A/C units, portable electric spas, and drinking water dispensers. Supported by a broad coalition of environmental groups and appliance manufacturers, the bill would conserve enough energy to fuel "4.6 million homes" save consumers a net "$43 billion by 2030," according to an analysis by the Alliance to Save Energy.
The second, S. 1000 or the Energy Savings and Industrial Competitiveness Act of 2011, would address efficiency in further ways. In addition to establishing efficiency standards for appliances, it would strengthen national model building codes, encourage private investment in residential and commercial efficiency upgrades through DOE loan guarantees, create a "SupplySTAR" program to enhance the efficiency of companies' supply chains, and require the nation's largest energy consumer, the federal government, to institute efficiency and energy-saving measures. Industry also is getting behind this bill. Eric Spiegel, Siemens Corp.'s president and CEO, said this: "Federal, state and local budgets are as tight as they have ever been, but energy efficient products and solutions that will be advanced through this important piece of legislation can help government, industry and consumers save energy and millions of dollars, create jobs and spur competitiveness."
For those who are endeared by measures that both save money and our nation's environmental future, these bills should come as welcome news.
And if that's not enough, take a walk down the aisles of your local hardware store. You might be pleased to find some of the light bulbs that are now for sale.
Thursday, May 26, 2011
On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain. I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students. McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:
I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . . But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . . It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.
McClure has a point. It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not. By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions. We lawyers parse words for a living. We need to be careful how we do so. Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.
Most administrative law classes, including mine, focus on procedure, and rightly so. Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on. Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.
This is the chief point of my aphorism. One cannot comprehend administrative law without understanding the politics that underlie it. This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student. Does the average administrative lawyer help craft agency policy on a daily basis? No. But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls? Also no. The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.
- Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked
- Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated
- Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence
- The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place
These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.
Any serious student of energy law -- or administrative law -- would do well to note that. They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.
Politics matter. Procedure does too.
Thursday, April 28, 2011
No doubt that one of the most important forces in environmentalism over the last three decades has been the environmental justice movement. Leaders in this field -- Bunyan Bryant, Robert Bullard, Sheila Foster, Eileen Gauna, Hazel Johnson, and Beverly Wright, to name only a few -- changed the way environmental issues are seen. They point out that much of environmental protection has been myopic, and that its focus must change: to include equity, gender, income, race, and, ultimately, justice.
This week, the Department of Energy, the EPA, and the Department of the Interior, among others, are sponsoring what looks to be a phenomenal conference on the state of environmental justice today. From the press release:
The U.S. Department of Energy, along with the U.S. Department of Agriculture, the U.S. Department of Interior, the U.S. Environmental Protection Agency, the National Small Town Alliance, the Howard University School of Law and others, kicked off the State of Environmental Justice in America 2011 Conference today in Washington, D.C.
This year's conference theme is "Building the Clean Energy Economy with Equity," and will focus on climate change, green jobs and equity for low-income, minority and Tribal populations. The goal is to continue bringing together participants from Federal agencies, academia, business and industry, nonprofit organizations, faith-based organizations and local communities to participate in a dialogue on achieving equality of environmental protection.
Thursday, March 31, 2011
As the saga continues to unfold at Fukushima Daiichi, commentators continue to question what the disaster will mean for the future of nuclear energy. Numerous media outlets have extensive coverage, including at the Washington Post, the New York Times, the BBC, and Time.
This week's Economist has a particularly interesting article, "When the Steam Clears," which takes up the question from the international vantage. The article, in a way, begins with its conclusion: "Fear and uncertainty spread faster and farther than any nuclear fallout." Its point is clear. Whether one is on the nuclear energy bandwagon or not, perception matters terribly. And for an industry that, in the U.S. at least, has been largely stalled out for the immediate past decades, Fukushima is casting a rather long shadow.
More specifically, the article makes three observations worth highlighting:
- Nuclear is expensive. This is hardly revelatory, but the point The Economist makes with the fact is one often forgotten. It is worth remembering. As a result of nuclear's cost, most plants today are old: "[W]ith a median age of about 27 years and a typical design life of 40 a lot [of nuclear power plants] are nearing retirement."
- Nuclear is ubiquitous, if not dominant. Although the U.S. leads the world with over 100 reactors, we get about 20 percent of our electricity from them. Other nations take much more of their electricity from nuclear -- Germany at 26 percent, Japan at 29, South Korea at 35, Ukraine at 49, and, of course, France leading the globe at roughly three-quarters their total electric production. Still, the world average is much lower. "[N]nuclear power is much less fundamental to the workings of the world than petrol or aeroplanes. Nuclear reactors generate only 14% of the world’s electricity . . . ."
- Nuclear is not going away. While the disaster at Fukushima clearly has resurrected the specter of nuclear tragedy 25 years after Chernobyl and 30 post-Three Mile Island, even the dimmest of views on the technology has not stopped its continued use. Last week, with Fukushima still front page news, the Nuclear Regulatory Commission extended the license of one U.S. plant. And, as with many things nowadays, China is a leader. It is planning extensive nuclear expansion. "Though China, which has 77 reactors at various stages of construction, planning and discussion, has said it will review its programme in the aftermath of Fukushima, few expect it to stop entirely. China has a great appetite for energy, which will continue to grow."
Weighing these observations leads to a number of others that will certainly be in play as the fate of nuclear is considered, both here in the U.S. and abroad, in the aftermath of Fukushima.
First, virtually everyone will reevaluate plant safety because of Fukushima, and this may mean changes for both those already in existence and those planned to come online. The NRC has already said it will be taking a hard look in the U.S., and of course other countries have become even more skittish, as I posted two weeks ago. In any case, these (re)evaluations may well impact how much -- or at least how quickly -- new facilities are added to the grid. The massive stranded costs the companies that built plants in the U.S. in the 1970s and 80s faced after regulation kept changing cannot be far from the front of their collective minds.
Second, we still have not solved the largest stumbling block to using nuclear, whether that use is in its current proportion or an increased one. Long-term storage of high-level nuclear waste is a bugaboo. No state wants the waste. Yucca has dragged on for literally decades. Now it is unfunded. Meanwhile, there are already rumblings about whether the current de facto "solution" -- storing the waste at operating reactors, often in storage ponds -- should continue. None of those facts, or the questions they imply, are easy.
Third, if nuclear is going to be used, Fukushima only highlights the need to make the decision concsiously, openly, and democratically. As David Spence articulately observed yesterday on the envlawprofs email listserv, all energy options force tradeoffs. Fears associated with nuclear are persistent, whether they are accurate representations of its real risks or not. Compare the actual deaths and costs associated with nuclear over the past half-century with those of, say, coal, as Prof. Spence noted, and the factual (rather than perceived) assessment of risks may change. True, nuclear has clear downsides, but it has many advantages as well. As with climate change, if industry is going to continue pursuing nuclear as an option, clear signals are needed.
Right now, the legislative signals on climate change, in the U.S. at least, are muddled if not stalled out. Fukushima may have only the same effect for nuclear.
For an energy source that now provides one-fifth of our electricity, one wonders whether stalemate is the right answer. In a world where nuclear now faces multiple possible futures, that's a question we must ask.