Monday, March 31, 2014

A Couple of Takes on Climate Winners

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

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

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

- Michael Burger

 

Norway-arctic-37-honningsvåg-reindeer

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

Friday, July 26, 2013

What's New in Fracking (Fracing, Hydrofracking, Hydraulic Fracturing) Law?

Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace.  The law, too, is quickly changing.  If you're teaching or writing in this area this fall, I've listed some of my favorite resources below.  Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.

The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required.  These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons.  This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago.  The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks.  All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process. 

How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves.  The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed.  The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG."  The project is still under construction.

The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically.  There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.  

Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time.  Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations.  The technique has, of course, changed quite a bit since then.  The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed.  Other older fracs used mostly water.  But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques.  Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions.  Acid injected before the water can also help form fractures.

The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers.  The companies fracture each interval, which greatly enhances well production. 

The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments.  But the regulation of oil and gas development is very much in flux. 

Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions.  The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works.  The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level.  Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.

In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming.  The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing.  One USGS study in Arkansas found no impacts on water quality from "gas-production activities."  The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.

The Fish and Wildlife Service has also begun to be more active in this area.  On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.

State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals.  In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules.  Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.


Local and state:  The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells.  A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development.  A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field.  The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.

Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary.  If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.

Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases.  In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:

"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not  protected by the “rule of capture,” but rather constitutes an actionable trespass."

There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable.  When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior."  See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA.  United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).

Science:  Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio.  Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers.  D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal."  For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.

With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage.  The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius.  Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs.  And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.

Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document.  For impacts on local economies, Penn State has a number of good sources.  And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.

And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas.  A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.

-Hannah Wiseman

July 26, 2013 in Climate Change, Energy, Land Use, Water Quality, Water Resources | Permalink | Comments (3) | TrackBack (0)

Saturday, April 20, 2013

China Environmental Experiences: Table of Contents

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 ChinaIMG_300 ER teaching at HaiDa A (111611) “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.…” Beijing CBD view on July 23 2011 Smog over 400 PMI (Smog) Beijing CBD view on July 26 2011 Smog over 60 PMI (Clear)

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 NatureLaoshan Mountain 036“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.   China Sept 2011 400“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….”

--Erin Ryan

Shanghai Jade Buddha Temple, World Financial Center, Bund 070

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)

Tuesday, December 11, 2012

Rethinking Sustainable Development, ELC Essay #7: Adaptive Management, Resiliency, and Why Sustainability Discussions Give Me a Headache

Climate change does not change our view of sustainability; it heightens the importance of sustainability thinking. The concept of sustainability is inextricably linked with ideas of planning and management. From an ecological standpoint, sustainability guides resource management—helping ensure that current use of a resource will not deplete the resource and that future generations (or even just future versions of us) will be able to use the resource as well.

Take the simple example of sustainable timber management. If we cut down all the trees today, we won’t have any trees available for timber next year. If we harvest timber in a way that leaves the soil vulnerable, we’ll make it even harder to have trees in the future. Therefore, when deciding how to manage the forest, we make a plan that involves cutting down only some of the trees. We look at water, soils, and nutrients to determine what actions will protect our desire to cut down more trees in the future. We consult scientists and economists and take ecological and social considerations into account. And then we realize that our simple sustainable forest example is not really so simple. To meet our goal of sustainable timber harvest, we must also adopt an approach that considers many factors and is open to change and adaptation as inputs change or our information about (understanding of) the system grows. 

Sustainable timber management offers a glimpse into the complexity of thinking broadly about sustainability, yet climate change makes sustainability analysis even harder. Keeping with our forest example, climate science tells us that we are likely to see even greater changes in water regimes, nutrient availability, and species richness. Things are going to get harder because our earlier predictions about the future were wrong. Things are going to get harder because our current understanding of the natural world is still wrong. Things are going to get harder because all of our natural and social systems will be facing increased stress.

Sustainability thinking necessarily involves both (1) thinking about the future and (2) taking an adaptive approach. Sustainability as a concept and approach means considering the future health of ecosystems and seeking to maintain functioning systems. If we seek to sustain anything, we must establish some projections of what the future conditions will be. We need to determine what prescriptions are needed. Climate science (along with many other fields) tells us that the world is a changing place and that the future is not always easy to determine.

Adaptability is what makes sustainability effective in an era of climate change. Mechanisms like adaptive management enable us to revisit policies and programs as circumstances change. A call for embedding ideas of adaptive management in our environmental laws is not new. Yet, we have only been minimally successful on that front. Much of law, especially laws regarding environmental protection and property, are static. Our methods of land conservation, for example, have focused on park-like protection where we set land aside for public ownership or protect it with conservation easements. We set static rules regarding the land, often adopting a hands-off approach and hope that will serve future needs. This means we sometimes get part one of the equation right—we think about the future. But we leave off part two. We don’t create mechanisms to reexamine our rules or management strategies. In our changing world, we are too focused on fixed points.

Breaking free from current practices and norms is not an easy task.  the ecological concept of resiliency, however, may help us approach environmental protection from a new direction. Resilience is the capacity of an ecosystem to respond to perturbation or change. High resiliency is a function of both an ability to resist impacts and to recover quickly from disturbances. Importantly, a resilient system is not one that continues to look the same throughout the ages but one that responds and reorganizes while retaining function. Environmental protection should not be an effort to retain ecosystems and amenities in their current state but should promote resiliency. Healthy functioning systems are not wedded to a specific external appearance. Working towards resiliency means assessing what the thresholds of a system are and how close we are to those thresholds. Thinking of adaptation in resiliency terms goes beyond assessing whether humans will be able to respond to the coming climatic changes and considers our capacity to manage resistance and influence resilience. This shift towards resiliency thinking is a fundamental component in updating our principles of sustainability in an era of climate change.

-- Jessica Owley 

December 11, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, December 7, 2012

Rethinking Sustainable Development, ELC Essay #5: The Sustainable, Inevitable Exploding City

The global urban footprint will expand from two to five times what it is today by 2050. This is in part due to the estimated population growth of 2.4 billion between now and 2050, most of which will occur in urban areas. Urban areas also have a persistently declining density in both developed- and developing-world cities. As a result, an extensive new infrastructure will be built in the twenty-first century that will exceed the size and scale of all previous city building.  The dismal fact looms:  our cities are exploding, inevitably.

Making the inevitably exploding city of the 21st century sustainable should be the cornerstone to long-term conservation and adaptability efforts to address climate change. It only makes sense that an environmental problem derived from human development revisit the source of the problem. Consider: transportation is a major source of greenhouse gas emissions, as are the construction and operation of residential and commercial buildings; land-use change resulting from city growth will also increase greenhouse gas emissions, through acts such as deforestation; and increased building stock will drive greater electricity use. Sustainable solutions to reducing greenhouse gas emissions in exploding cities will require equal parts pragmatic policy, legal tools, and a new narrative of development. Here is what this approach might look like:

Policy. To accept the exploding city as inevitable does not mean we stop trying to improve city form and increase density, but it does mean we move beyond efforts simply to contain growth of the urban footprint. For instance, California’s approach to the transportation sector has been a “three-legged stool” of greenhouse gas emissions standards for new model vehicles; low-carbon fuel standards; and land-use policies intended to reduce vehicle miles traveled. As a second example, building standards must be changed to achieve two ends: reduce climate emissions from the operation of buildings and adapt to a changing climate. To wit, Amory Lovins once famously grew a banana tree in a well-insulated hothouse in the middle of a Colorado winter with little heating. Similarly, we can substantially reduce buildings’ resource demands within the scope of existing technology: we must deploy it in this generation of buildings that will redefine human habitation.

Law. Cities must be places people want to live. Great places are not built as a monolith but by empowering local communities in megapolitan regions to build communities in their images. In developed countries, this means advancing sub-local government structures, which I have called “legal neighborhoods” to service sub-local needs, while still using local government to address regional issues. In developing countries, it means advancing concepts such as Brazil’s City Statute, which, broadly speaking, seeks to bring its slum areas, or favelas, into civil society; seeks to bring both social and environmental justice to those communities; and allows those communities to participate in the fruits of cities’ developments. Densely-settled environments must become more than merely tolerable and more than a place for economic opportunity: they must become the places people would choose to live over all other choices. The legal and political tools must make this choice evident.

Narrative. Sustainability’s narrative must move beyond its famous definition from the Brundtland Commission as “meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs.” In the context of the exploding city, I propose a “dwelling ethic.” A dwelling ethic, as I see it, incorporates the “land ethic” approach of Aldo Leopold, which he stated “enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land,” with the teachings of Martin Heidegger that construction must be for “dwelling,” or long-term inhabitance, not just “building,” a consumerist approach to the physical environment.  To achieve Leopold’s vision for the land in an age of exploding cities, we must decide to dwell, as Heidegger would say, as if we intended to stay put—in this house, on this planet—for some time to come. Such an ethic is of particular importance in this, humanity’s most peripatetic age.

-- Stephen R. Miller

December 7, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability | Permalink | TrackBack (0)

Thursday, December 6, 2012

Rethinking Sustainable Development, ELC Essay #4: Making Sustainability Count

Sustainability is an increasingly important concept in environmental and climate-change law. To the extent sustainability means that people should reduce their environmental impacts and shrink their carbon footprints, it seems that the increased focus on sustainability offers significant promise. But it is unclear that sustainability has that meaning; indeed, the term sustainability has become so ubiquitous and amorphous that it seems to have no common meaning. That might not matter very much when the idea of sustainability is used to promote gratuitous or individual acts of environmental stewardship. However, successful climate-change mitigation will require greenhouse gas emissions and atmospheric carbon dioxide concentrations to reach specific numeric levels. If governments replace quantifiable emissions reduction targets with ambiguous sustainability goals, this could undermine long-term efforts to reduce greenhouse gas emissions and mitigate climate change. Therefore, in the context of climate change, it is critical that governments make their sustainability programs count by measuring the benefits of their sustainability measures.

Over the past several years, a number of cities around the country have adopted climate action plans to reduce municipal greenhouse gas emissions. Many of these climate action plans focus on similar sectoral emissions-reduction strategies, such as reducing vehicle miles traveled by steering people away from single-passenger car trips; reducing waste-related emissions by encouraging composting and recycling; encouraging energy efficiency and localized renewable energy production; and encouraging other mitigation strategies such as tree planting, urban gardening, and other activities to reduce urban heat (and thereby reduce the need for air conditioning). Although these strategies may have significant potential to reduce urban greenhouse gas emissions and mitigate climate change, cities often fail to quantify the anticipated reductions the strategies will produce. Even where cities can point to emissions reductions they have achieved—for example, Portland, Oregon, has lowered its emissions to 1990 levels after pursuing elements of its climate action plan—they typically do not link emissions reductions to specific measures. Instead, cities have begun to promote the general concept of sustainability rather than develop specific strategies to meet the numeric metrics in their climate action plans.

Why should this matter? After all, if a city can show that it is simultaneously implementing a climate action plan, becoming more “sustainable,” and reducing greenhouse gas emissions, it would seem that sustainability efforts deserve praise. The problem, though, is that climate-change mitigation ultimately relies on numbers: to avoid temperature increases above 2°C, scientists estimate that global carbon dioxide concentrations must fall back to 350 parts per million (which may actually be too high), which requires quantifiable emissions reductions measured in tons of carbon dioxide equivalent. If cities are serious about mitigating climate change, they need to link their plans to quantifiable targets. Sustainability should not be exalted at the expense of governmental accountability.

That does not mean that sustainability (whatever it may mean) should not play a role in climate-change mitigation. Local climate action plans may help promote and reinforce behavioral norms necessary for societal changes that comprehensive climate-change mitigation demands. City leaders in Portland, Oregon, and New York City have tapped into the idea of sustainability to garner support for those cities’ climate plans, to encourage participation in the cities’ sectoral mitigation efforts, and to change the culture in ways that could lead to deeper emissions cuts over the longer term. The vague concept of sustainability seems to promote participation and buy-in from residents in those cities, because it provides city residents positive reinforcement as they work to improve their communities.

This concept of sustainability—that it serves to promote good will and emotional benefits—may seem weak. But research has shown in various contexts that positive reinforcement and messaging may do more to promote behavioral change than scolding and shaming do. For example, voter turnout efforts that emphasize the civic benefits and positive aspects of voting have a greater impact than efforts designed to play on voters’ fears and anger, contrary to some social scientists’ expectations. If government leaders use the concept of sustainability as a positive, upbeat strategy to enlist urban residents in climate-change mitigation efforts, this could help change societal norms. Changing norms, in turn, could allow city leaders to take more aggressive measures to achieve their quantifiable targets.

To make sustainability count in the climate change context, we should insist that cities establish quantified emissions targets and demonstrate that their sectoral strategies will achieve these targets. The concept of sustainability can help cities implement their climate action plans, but it should not displace a quantified approach.

-- Melissa Powers

December 6, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability, US | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 5, 2012

Rethinking Sustainable Development, ELC Essay #3: Sustainability: Defining It Provides Little Value, But Its Meaning Is Essential

Depend upon it, Sir, when a man knows he is to be hanged . . . it concentrates his mind wonderfully. Samuel Johnson

What does sustainability mean in an age of climate change? The question presents a dichotomy between the critical importance of acting, regulating, and legislating sustainably and the almost meaningless task of defining sustainability. On the one hand, climate change makes our continued survival and development as a society dependent upon the infiltration and incorporation of sustainability into all contexts and all facets of life. On the other hand, defining sustainability may prove to be a meaningless task (in or out of the climate change context) that misdirects a discourse on how to incorporate sustainability into our lives that must move forward.

Settling on a universal definition of sustainability is difficult (if not impossible) because the real-life application of sustainability is highly contextual and is based on a number of factors, including substantive area of application and geography. For each substantive subject matter, the relevant characteristics and metrics necessary to define or understand the applicable meaning of sustainability change. For example, the role of sustainability in mergers and acquisitions is drastically different than its role in zoning. Similarly, defining sustainability is dependent upon the geographical area: what is sustainable for purposes of land use in rural Africa is fundamentally different from what is sustainable for purposes of land use in dense urban China.

Because applying sustainability is highly contextual, a single definition is relevant to multiple contexts only at a highly generalized level. For example, to garner a definition of sustainability that is relevant to land use in rural Africa and land use in urban China we may sacrifice all helpful specifics of the term. Common generalized definitions include the triple bottom line of economic prosperity, environmental quality, and social justice, along with intergenerational equity.  Those generalized definitions are insufficient to move sustainability forward in any concrete way. They provide minimal value in directing or promoting actual changes necessary to avoid climate catastrophe. They tell CEOs and local planners, for example, little operationally about how to measure sustainability in a particular context, how to monitor it, or how to move towards a sustainable society.

And yet, while defining sustainability may provide little benefit, the functional application of sustainability could not be more meaningful. Sustainability serves to fundamentally change the way we approach almost every aspect of our lives. It requires us to alter our thinking in how we understand and solve the challenges we face, including expanding the relevant inquiry to seek (in the words of Keith Hirokawa) “a more rigorous pursuit of equity as a matter of governance, a more honest incorporation of economics into environmental quality considerations, and a more effective regulation of the interaction between the natural and built environments.” Thus, the question of how we incorporate sustainability into our lives in a specific context is a far more relevant and proactive inquiry that can have a positive effect on climate change.

I recognize that some definitions of sustainability may be attempting to achieve something other than an operational roadmap to meet the challenges of the future. Rather, those definitions are to provide us with a starting point and the flexibility to apply sustainability to a variety of contexts. They are purposefully broad and inclusive to be applicable to a large spectrum of substantive areas. If true, we have achieved this objective. Now, our focus and resources should be spent on designing creative solutions to apply the existing general definitions to new contexts. We will not make the innovative changes necessary to address climate change if we are consumed with obtaining a uniform or universal definition for sustainability. For example, to effect positive change related to sprawl and zoning a conversation with local planners, developers, and community groups about the triple bottom line, intergenerational equity, precautionary principle . . . etc. is a show-stopper. Instead, a conversation about exploring new and concrete options for measuring, baselining, and assessing sustainable zoning and mass transit would get us closer to avoiding climate catastrophe.

The pressing need to take action on sustainability is particularly true in an era of climate change. As the effects of climate change become more apparent, decisions pertaining to the future of society must be made within the context of the risks associated with climate change. Climate change alters the factors necessary to make a decision, but does not alter the sustainability paradigm. Accordingly, however one defines sustainability, the application of that definition in an era of climate change plays a more prominent role as our survival (a minimum definition of sustainability) depends upon it—and that, to paraphrase Samuel Johnson, should concentrate our minds wonderfully.

-- Jonathan Rosenbloom

December 5, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability | Permalink | Comments (3) | TrackBack (0)

Thursday, October 25, 2012

Shifting Seas: The Law's Response to Changing Ocean Conditions - November 14th and 15th at RWU

On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:  

This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea  boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities.  At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.

You can contact me if you have any questions. And I hope to see you in Bristol!

- Michael Burger

October 25, 2012 in Biodiversity, Climate Change, Current Affairs, Governance/Management, International, Land Use, Law, Water Resources | Permalink | TrackBack (0)

Wednesday, September 12, 2012

China Environmental Experiences #6: Environmental Philosophy and Human Relationships with Nature

       This is the sixth 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, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.  This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world. 

       October 2011 Zoo--Sunset through Ocean fog 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.  With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series.  At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).

       These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating.  Every culture has elements that are puzzling, even troubling to those outside it.  (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!)  Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject. 

       Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
      
       But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.  They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions.  This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law. 

       The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with Chengdu 208grandmothers.  So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself.  We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment.  But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices? 
      
       From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons.  We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations. 
      
       We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs.  Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies.  Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate. 

       Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances.  They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness.  But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world. 

Muir Wilderness Heart Lake       This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification.  Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone.  We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964).  Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles. 
      
       To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system.  They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks.  But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation.  After all, there are roads all over the world!  But there is only one Grand Canyon.

  Chinese landscape painting      Most modern Chinese see the human relationship with nature very differently, and from the bottom up.  Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role.  There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true.  But today, in both government policy and popular consciousness, the balance appears reversed.  By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature.  Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state.  The Chinese, perhaps, have been on an opposite trajectory.
      
       Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty.  After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means.  In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales.  In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs.  To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded.  For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean.  But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
      
       Again, part of the reason for this doubtlessly comes from the pressure of managing such an China Sept 2011 465immense population on such a comparatively small chunk of land.  After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States.  The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people.  The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population.  This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space.  Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity. 
      
       Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population.  And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness.  But by and large, most Chinese people don’t.  Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it.  Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy. 

       Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival.  New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel.  Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together.  But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness.  It was just, in some regards, a different kind of peace.

       Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world.  But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic.  They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons.  The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.”  In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural Turpan Karez 2environments.  As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert.  The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.

Dujiangyan-Irrigation-System-9       Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China.  More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China.  Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation.  Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.

       Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness.  You can see it in the stunningly beautiful Chinese gardens Chengdu 430 of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi.  These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art.  Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers.  Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens.  But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.

       In fact, the Chinese preference for heavily mediated nature extends even to their own national parks.  Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon.  I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest Xinjiang - Tianshan Tianchi 046China.  I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit.  They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi. 

       Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake.  But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside.  It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see.  (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.) 
      
       At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps.  That is, except for the crackling speakers—poorly camouflaged as tree Xinjiang - Tianshan Tianchi 070stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience.  And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music.  As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson.  “Bad,” I believe.  Followed by Abba.  (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)

       To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly.  There is no trail around the lake, she insisted, and she’d been giving tours here for five years.  I would later confirm that the Xinjiang - Tianshan Tianchi 071trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it.  It’s just not part of what they want from their encounters with wilderness.  Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."  

       Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape.  But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country.  Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind.  My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest.  We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails.  But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
      
       Learning from that mistake, I later used the Internet to research a spectacular trail alongside a January - New Year and Yunnan 765majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet.  Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it.  I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists January - New Year and Yunnan 764 used it.  They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas.  As long as I live, I will never forget that hike.  But as far as I can tell, most visiting Chinese will never take it.
      
       I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.”  Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate.  The closest Chinese word would be “pa-shan,” which means to climb a mountain.  But in China, most mountains are climbed on paved trails and stone staircases.  In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit.  When I first arrived in Qingdao, I was delighted to discover that the Laoshan Mountain 088small mountain behind my neighborhood didn’t have one.  But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops.  This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.

       As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness.  I long for earthen trails, and not for piped-in music.  Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation.  Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail.  And they often lead to spectacular temples and contemplative pagodas nestled among the hills, Cherry Picking with the Xin Family 181 a classical and undeniably beautiful feature of traditional Chinese culture.  Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it.  For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...

[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]

--Erin Ryan

 

September 12, 2012 in Asia, Current Affairs, Forests/Timber, Governance/Management, International, Land Use, Music, Travel, US | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Monsoon Madness

Monsoon-map

NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.

Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.

Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.

Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.”  In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.

India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.

Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.

- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.

Monsoon1

August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 30, 2012

China Environmental Experiences #4: Wifi Without Potable Water

This is the fourth 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, and April’s account of air quality issues in China.) 

This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power.  China is the world’s fastest-growing major economy—the second largest economy of all nations, the largest exporter, and the second-largest importer in the world.  It is a nation with 500 million Internet users, 100 million cars, and the world’s largest standing army.  It is the third nation on earth to independently launch a successful manned space mission, with plans to send astronauts to the moon in the coming years.  At least in urban areas, China is a thoroughly modern, explosively developing place—with department stores selling Prada, goofy reality TV, and wifi at the local tea house... but you still can’t drink the water.

Xinjiang - Tianshan Tianchi 148Visitors to China are carefully warned that the water is not potable and must be boiled thoroughly before consumption.  Every hotel room has a small water boiler for this purpose, and the more expensive ones provide a nightly bottle of safe drinking water by the bedside.  Water quality problems are traditionally associated with the continuing use of “night soil” (human and animal waste) to fertilize crops—an effective and inexpensive alternative with an inexhaustible supply.  Yet the problem continues even as farmers embrace more modern chemical fertilizers (perhaps too heartily, at the alarming expense of soil health), and as other contaminants enter the water supply.  While visiting the old city of Lijiang in Yunnan Province, for example, I rose for an early morning walk to find cooks cleaning the carcasses of recently killed animals, intestines and all, directly into the Venice-like canals from which others draw their drinking water.

Shortly before our arrival, we were warned by a vaccination nurse familiar with the most dangerous waterborne diseases to only sponge-bathe our 3-year-old, rather than risk his inadvertent exposure to waterborne parasites through his open eyes or mouth in a shower.  Once here, we quickly decided that this level of precaution was unnecessary, at least in urban areas where the municipal water supply receives some level of filtration or disinfection before reaching the tap (especially true in Beijing).  Still, we have learned well the rules of life here in China: drink only boiled or bottled water, no ice that can’t be sourced to boiled or bottled water, no fruits or vegetables that haven’t been cooked or peeled, and brush teeth with tap water at your own risk.  (Some friends do; others, including me, don’t.)  You should also ensure that bottled water is truly factory-sealed, as scandals have occasionally revealed empty bottles refilled with tap water being resold as new.

Without a doubt, adapting to life without potable water was the biggest cultural adjustments for us when we arrived last summer.  The first consequence was minor physical dehydration: without easily accessible clean water to drink, we drank less, and soon found ourselves more easily exhausted, ornery, and sick.  (Indeed, nothing confirms the critical nature of this life-sustaining resource more effectively than losing the taken-for-granted tap.)  Every journey away from our apartment involves water planning, as we take careful stock of how many are traveling, what will be needed, and how best to transport it.  I seem to drink more than my Chinese friends, but I still seem to be always thirsty. 

And there were other puzzling features of our new world.  For example, we struggled to understand at exactly what point our dishes were clean enough to eat off after washing them in tap water.  Were the still damp chopsticks safe to use, or the recently-washed cup still bearing that fine sheen?  And when dealing with my son’s inevitable scraped knees and elbows, was it better to wash with soap and water to disinfect, or was the water itself a source of potential harm?  (For the record, we have decided that dishes must be completely dry to be safe, and that cuts should be washed with soap and water until the dirt is out, but subsequently sterilized with disinfectant whenever possible.)

Chinese culture adapted long ago to the perils of non-potable water.  Chinese people boil all their water before drinking it, but it doesn’t seem like a burden, because they prefer to drink their water hot.  They range from amused to amazed when foreigners request cold water, which to them is as distasteful as drinking plain hot water is those foreigners.  When I invite my students to ask questions of cultural exchange—anything they want to know about American culture, politics, or lifestyle—the most frequent question is always “Why do Americans like to drink cold water? (Yuck!)”  Perhaps as a result, there is no groundswell of popular sentiment to “do something” about the water situation.  From the perspective of most Chinese, there is no problem with the water.  Everything is as it should be.

Urumqi 246Yet China is suffering from increasingly serious water pollution problems that can’t just be boiled away.  Chemical pollutants entering the water supply from industry and agriculture are getting worse, involving toxins oblivious to disinfectants.  The World Health Organization has identified 2221 different pollutants in waters worldwide, and 765 of them in drinking water—but current drinking water standards test for only 35 indicators, and new criteria that will go into effect on July 1st will regulate only 106 pollutants.  (Source: Dr. Yu Ming, water pollution researcher at Ocean University of China.)  Chinese lawmakers and the Ministry of the Environment are struggling to cope with these problems through the PRC Law to Prevent and Control Water Pollution, but the even greater hurdle for environmental law is that of implementation. 

Even where China’s environmental laws are comprehensive, their goals are imperiled by under-enforcement.  Illegal discharging is reportedly very common, because there simply aren’t enough agency personnel to monitor them.  And even when violations are discovered, they may or may not be prosecuted by the relevant government agency—depending, perhaps, on the economic importance of the violators, or their political influence.  When the government fails to act, it can be hard for citizens and NGOs to take up the slack, because most Chinese courts don’t recognize standing for public-interest citizen suits.  And even if traditional standing were established by a directly injured party, the court may or may not decide to hear the case (for my money, one of the most surprising features of the Chinese legal system).  For these reasons and others, enforcement is usually seen as the major weakness in China’s environmental law regime.  Perhaps China’s new experimentation with a handful of specialty environmental courts will help redress these important problems.

In the meanwhile, water quality problems intersect with and exacerbate other environmental problems.  For example, one unfortunate consequence of unreliable tap water is the resulting prevalence of disposables: single-use bottled water, disposable plates and bowls, even the single-use toothbrushes that hotels at every level routinely provide.  I spent the last year spearheading a university sustainability initiative that sought personal pledges to avoid bottled water and other disposables as much as possible, so it was particularly jarring for me to adjust to this new norm—where we are happy to eat at a restaurant that provides disposable bowls, plates, and chopsticks, because we know they won’t make us sick that evening.  (And I was happy to note that, at least at our favorite local restaurant, the plasticware is marked as biodegradable.)  By contrast, at restaurants that provide the reusables I normally seek out at home, we nervously try to sterilize them with hot tea before using them, because they have likely been rinsed in the too-thoroughly recycled dirty dishwater that compounds the problems already coming out of the tap.

So, after religiously toting my reusable aluminum bottle to my every American class last year, I now carry plastic bottles of water everywhere.  And though I reuse the small bottles as long as possible rather than discarding them after a single use, they are usually filled with water that I get at home from the water-cooler bottle that many Chinese families use.  On any given day, you can spot a handful of strong men riding motor-scooters with an improbably number of these strapped to the back, exchanging filled ones for empties at private homes and businesses.  I’m happy to report that at least these large bottles are faithfully recycled.  But I’m unhappy to say that smaller plastic bottles litter the streets, parks, mountains, landfills, beaches, and accordingly, rivers and oceans.

Urumqi 121Neither is the important relationship between water quality and water quantity lost on China, which has one of the lowest per capita rates of fresh water in the world.  Northern China is arid and especially lacking sufficient water, marked by some of the world’s great deserts, like the Gobi and the Taklimakan.  But it rains plentifully in the south and along much of the coasts.  As a result, China has erected the most massive water-delivery infrastructure in world history to shift enormous quantities from south to north, a project already underway for fifty years and scheduled for completion in another forty.  Linking China’s four main rivers together in a network of diversions, it will eventually move almost 50 billion cubic meters of water annually.  Although the project has already caused its fair share of negative environmental consequences and human displacement, most of the Chinese I have spoken to—even those from regions in which water is taken—are comfortable with the need for extreme inter-basin transfers to support northern population centers like Beijing.  And they are proud of the ingenuity and engineering that underwites this aspect of "man-made China."

Like nearly everything else in China, its history of mind-boggling human interventions with water began thousands of years ago.  I had the opportunity to explore a classic example last week while visiting the Turpan Depression near Urumqi in Xinjiang.  Turpan is the lowest and hottest place in China, at 150 meters below sea level and in the middle of China’s most arid province.  Xinjiang - Turpan 143And yet there in the desert was a blooming oasis of vineyards, agriculture, and Uighur community.  How was it possible?  It is because 2,000 years earlier, the people who still live there dug 5,272 kilometers of underground canals with 172,367 vertical well shafts to collect and redistribute the groundwater accumulating from melting snow on the nearby mountains.  At its height, the “Turpan Karez” channeled 858 million cubic meters of water into 1,784 lines to distribute it to all parts of the region.  (You can’t even imagine what this looks like—best to see it, so try this aerial photo and this diagram).  Xinjiang - Turpan 179It is a staggering feat of civilization—a celebration of creativity, environmentally sustainable terrascaping, and the human ability to thrive against all odds.

Modern-day Urumqi, the capital city of Xinjiang, relies on similarly creative water technology.  During my visit, I saw acres of recently planted, spindly young trees in the desert outskirts of the city, lined up like toothpicks piercing the mostly barren earth.  I would often ask my hosts, “How will these trees take root?  With what water?”, and I was always told, “Oh, there is enough water here in Urumqi.”  Urumqi 281I knew that the trees had been planted for environmentally sound reasons—to help stabilize the soil, moderate ground temperature, and trap airborne dust—but I still couldn’t understand how they would survive in such arid ground, only occasionally studded with dwarflike sagebrush scrub.  In my broken Chinese, I would persist, “but if there were really enough water to grow trees, wouldn’t there already be trees here?”  And they would quietly insist, “no, no—there will be enough water,” though I could never understand from them why. 

Then on my last day, I visited a popular public park in the middle of the city, where the temperature was ten degrees cooler thanks to the canopy of the many mature trees that ringed its central hill and the banks of the creek flowing around it.  I followed my idle curiosity to the crown of the hill, where I was astonished to find a complex terrascaping system for just this park.  There was a small, swimming-pool like reservoir at the top, supplied by a large pipe snaking up the hill (it wasn’t clear to me from where), and a network of canals extending radially outward down the hill in all directions.  Indeed, the park’s oasis was created in the same manner as the Turpan Karez: decades earlier, the now lush trees had been planted in rings around the hill, and the reservoir fed them a steady supply of water through the canals at their base.  Xinjiang - Tianshan Tianchi 141I was awed by the success of the project, and the clear joy it gave the city residents who collected there en masse to enjoy its peace and beauty.  And I suddenly understood what mechanisms were likely helping those new trees take root in the desert surrounding the city.

With such scarcity at hand, China is trying harder and harder to avoid squandering its precious water resources with regulatory efforts targeting both quantity and quality.  Wherever there are flush-toilets, they are almost always low-flush toilets, with separate levers for the two types of waste they will encounter (one of which needs a stronger flush than the other).  Solar-powered water heaters effectively reduce consumption by limiting hot water to what can be stored on the roof at any given time (although the more expensive ones have a gas or electric backup).  Greater efforts are being made to reduce use and recycle water wherever possible.  Hopefully, China will find a way to enact and enforce more effective water pollution laws to avoid further industrial and agricultural degradation of its water resources. 

But for what it’s worth, I’m told there are no great plans on the horizon to achieve potability from the tap, because potability is just not a cultural priority in China.  So the mantra will continue: boiled or bottled, cooked or peeled, rinse at your own risk…

 January - New Year and Yunnan 639



--Erin Ryan

May 30, 2012 in Asia, Forests/Timber, International, Land Use, Law, Legislation, Sustainability, Travel, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, February 20, 2012

New Series: Environmental Adventures in China

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

ELPB 1 QingDaYiLuTo be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

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. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

China Sept 2011 385I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

ELPB 1 UsThe Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.ELPB Intro sea

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

--Erin Ryan

February 20, 2012 in Air Quality, Asia, Climate Change, Energy, Food and Drink, Governance/Management, International, Land Use, Law, Sustainability, Toxic and Hazardous Substances, Water Quality, Weblogs | Permalink | Comments (3) | TrackBack (0)

Wednesday, February 15, 2012

Changing the Way We Think (about Building)

Existing buildings – in their physical presence, design, and operations - challenge the goal of sustainability in the built environment.  Older buildings can be leaky, inefficient, and even unhealthy, and they typically do not perform well against the expectations that we draw from today’s green building techniques and technology.    

There is evidence that green building programs are impacting the existing building stock through retrofit programs offered in LEED and others.   The number of projects certified under LEED for Existing Buildings: Operations and Maintenance (EBOM) surpassed those certified under its new construction counterpart in 2009.  Spending on remodeling and retrofits has been on the rise and is predicted to grow to $10.1 billion-$15.1 billion by 2014.  Recently, the USGBC announced that LEED-certified retrofits have outpaced new construction certifications on a cumulative basis.

We might view green retrofits of existing buildings as significant.  Of course, the past is a major obstacle for achieving sustainability in the built environment, and the provision of alternatives to “business as usual” in existing structures is itself a victory.  In addition, and perhaps more importantly, the growth in green retrofits suggests that sustainability may involve changes in people as well as buildings. 

- Keith Hirokawa

February 15, 2012 in Climate Change, Energy, Land Use, Law, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, February 10, 2012

Practical and Experiential Learning in Environmental and Energy Law

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.

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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.

-Lincoln Davies

(photo credit: S.P. Hansen)

February 10, 2012 in Africa, Economics, Energy, Land Use, Law, Science, Social Science, Sustainability | Permalink | Comments (1) | TrackBack (0)

Thursday, February 9, 2012

Exactions and the Doctrine of Waiver

An earlier post on this blog raised the issue of whether the stringent takings standards of Nollan and Dolan are applicable at the point in time when the government, in a pre-decisional negotiating session, merely proposes a permit condition to counter environmental and infrastructural impacts of new development. A recent decision by the Florida Supreme Court in the matter of St. John’s River Water Management District v. Koontz concludes that the answer is no, though there are select opinions to the contrary in other jurisdictions. A related, or corresponding, temporal issue involves the doctrine of waiver: does a landowner, after acquiescing to a conditional permit, maintain the right to challenge the condition therein as a compensable taking? Several decisions out of California seem to suggest the answer is no. For instance, in Rossco Holdings, Inc. v. State of California, a state appellate court indicated that a landowner cannot challenge a condition attached to an issued permit after “specifically agreeing to the condition.”

If both Koontz and Rossco Holdings are correct, there arguably is never an opportunity to apply Nollan and Dolan. However, this obviously cannot be the case, for the U.S. Supreme Court unanimously preserved the Nollan and Dolan standards in 2005 in the course of clarifying components of its regulatory takings jurisprudence in Lingle v. Chevron, Inc.

So where does this leave the state of exaction takings law? My inclination is to say that Koontz is justifiable and Rossco Holdings — at least the above interpretation of Rossco Holdings — is suspect. Despite the many criticisms of and uncertainties surrounding exaction takings doctrine and the closely related unconstitutional conditions doctrine, the premise of these doctrines is evident: to protect people from being in the hopeless position of having no recourse but to submit to a manipulative, unconscionable state. Assuming this premise is both accurate and sound, it would seem that a landowner should be considered to have waived the right to challenge an exaction as a taking under Nollan and Dolan only after he or she has commenced the conditionally permitted construction or otherwise taken advantage of the permit.

-Tim Mulvaney

February 9, 2012 in Constitutional Law, Land Use | Permalink | Comments (0) | TrackBack (0)

Friday, January 27, 2012

Electric Power in a Carbon Constrained World

UntitledThere are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:
Registration is available here. If you cannot attend in person, the program will also be streamed live here.

-Lincoln Davies

January 27, 2012 in Air Quality, Climate Change, Current Affairs, Economics, Energy, Land Use, Law, North America, Sustainability, US | Permalink | TrackBack (0)

Friday, January 13, 2012

ABA's 41st Annual Conference on Environmental Law

The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City.  If you have not been before, this is one of, if not the, premier environmental law conferences in the nation.  (If the weather turns right, there could also be really great skiing.)  The conference used to be known as the "Keystone Conference."

As usual, there is a fantastic line-up.  Just a few samples include:

  • Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions

  • Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption

  • Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal

  • Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion

Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).

To register, go to the conference website.

-Lincoln Davies

January 13, 2012 in Current Affairs, Energy, Land Use, Law, North America, Sustainability, Travel, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Wednesday, November 2, 2011

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Tuesday, September 27, 2011

When the Decline of an Endangered Species Hits Close to Home

  Dusky Gopher Frog 1   Dusky Gopher Frog 2
      

 

 

 

 

 

 

When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.

The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.

So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.

- Blake Hudson 

September 27, 2011 in Biodiversity, Current Affairs, Forests/Timber, Land Use | Permalink | Comments (0) | TrackBack (0)

Sunday, August 7, 2011

In Case You Missed It -- The Week of August 1-7

* The famine in Somalia continues to worsen.

* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.

* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions.  The hope is to spur greater use of carbon capture and sequestration technology.

* A new PAC has formed to promote energy efficiency legislation.

* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.

* The leopards are not happy.

August 7, 2011 in Africa, Biodiversity, Climate Change, Current Affairs, Energy, Land Use, Law, Legislation, North America, Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack (0)