Friday, January 27, 2012
- Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)
Friday, January 13, 2012
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.
Thursday, December 1, 2011
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)
Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co., (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).
No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)
Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.
First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.
PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.
Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.
As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?
From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.
Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.
Wednesday, November 16, 2011
In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water. They have issued a call for papers, with a deadline of December 15, 2011. The details follow:
CALL FOR ARTICLE PROPOSALS
The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40th anniversary of the Clean Water Act.
The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights. Articles may address state, national, or international issues. Suggested topics include:
- Clean Water Act
- Waste water treatment and disposal
- Citizen suits
- Invasive Species
- Conflicts between federal and state rights
- Congressional activism on environmental/ energy/resource issues
- Environmental enforcement at the federal, state and local level
- EPA and Surface Mining Act
- Agency issues
- Congress v. Agencies
- Role of science
- Cross-jurisdictional consistency/standards
ARTICLE PROPOSALS ARE DUE BY December 15, 2011.
Authors will work with an editor from the ELR Board throughout the publication process. Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation). ELR article guidelines can be found on the ELR website at: http://law.fordham.edu/fordham-environmental-law-review/5518.htm.
Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review
Saturday, November 12, 2011
She is too humble to mention this herself, so I will take this opportunity to note that Lesley McAllister was selected as the Stegner Center Young Scholar this year. As the Young Scholar, Professor McAllister will be visiting the University of Utah's S.J. Quinney College of Law this coming Monday and Tuesday, November 14 and 15. Here is the blurb:
Lesley McAllister will join the Stegner Center as our seventh annual young scholar. The Young Scholars Program, which is made possible by the generous support of the Cultural Vision Fund, is designed to recognize and establish a relationship with promising scholars early in their academic careers. Recipients are selected based on their accomplishments, the quality of their academic work, and their promise in the field of environmental and natural resources law and policy.
While at the University of Utah, Professor McAllister will give two talks. The first starts at noon Mountain time on November 14; it is "Regulation by Third-Party Verification." The second begins at 12:15 Mountain on November 15; it is "Co-Regulation in Mexican Environmental Law."
Both events are open to the public. If you're in Salt Lake, please join us. If you'd still like to participate but can't make it to Salt Lake, you can watch online.
Wednesday, November 2, 2011
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.
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)
Sunday, October 23, 2011
Climate change regulation is dead? Not in California, which this week adopted the nation's first economy-wide cap-and-trade program.
The Tenth Circuit, in a 120-page decision, upheld a Clinton-era rule protecting 50 million acres of forestland from logging and roads.
The Council for an Energy-Efficient Economy released its first annual rankings of states; Massachusetts was first, with California second.
An advocacy study observed that FCC standards for cell phones "grossly underestimate the amount" of radiation that "smaller adults and children retain," as reported by Greenwire.
BP received approval for a plan to explore for oil in the Gulf of Mexico, its first such approval since the Deepwater Horizon disaster.
There is a fascinating article this week in The New Yorker about the aftermath of the Fukushima-Daiichi nuclear accident in Japan. (hat tip: Joe Tomain)
October 23, 2011 in Asia, Cases, Climate Change, Current Affairs, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Law, Legislation, Science, Sustainability, US | Permalink | TrackBack (0)
Wednesday, September 7, 2011
As Cara Horowitz posted about earlier on Legal Planet, some recent polling data emerged today regarding politics and global warming, looking at the views of Democrats, Republicans, Independents and the Tea Party. The report was put together by the Yale Project on Climate Change Communication and the George Mason Center for Climate Change Communication. The data contained lots of interesting information, but the most interesting tidbit to me was that:
"Tea Party members are much more likely to say that they are 'very well informed' about global warming than the other groups. Likewise, they are also much more likely to say they 'do not need any more information' about global warming to make up their mind."
Certainly being a specialist in an area does not always make one correct, but reading reports and keeping up with the science of climate change is part of what many of us do for a living. For me personally that is a task separate and apart from my politics, as there is plenty on both sides of the political spectrum with which I both agree and do not agree. So while I have to rely on the understanding and processes of the scientists engaged in the research, due to my woeful scientific incompetence (I am not, after all, a climate scientist), I can still be somewhat sure from my review of the materials that 95% of scientists truly do maintain a consensus position on the human contribution to climate change, ocean acidification, etc. Yet I have seen the mindset reflected in the poll when discussing the science of climate change, where I can throw paper after paper and report after report at someone and within minutes they are responding that it just cannot be true, that the debate is still open, etc. Speed readers? I don't think so.
It reminds me of the Dunning-Kruger effect, but before I get into that let me make very clear that what I am discussing is a derivation of the actual effect. The actual effect is seen across all segments of society regardless of political affiliation, and involves less capable people overestimating their abilities while those more capable underestimate their own abilities relative to others. But I wonder how this combines with political affiliation to cause people to purposefully put themselves in a position of being "less capable." By that I mean is there a bias toward not believing in climate change that is ideological, but that causes those people to exhibit some Dunning-Kruger-esque view that they are "very well informed" about global warming - more-so than folks who actually trust the science - and that they "do not need any more information"? This is certainly not an argument on my part that members of the Tea Party are less "capable" from an intellectual perspective. I have many, many extremely capable acquaintances who sympathize with the concerns of the Tea Party, but who simply aren't interested in digging deeper than Fox News to find the facts about climate change. Rather, it is that Tea Partiers seem to choose to put themselves into a position where their capability to understand and accept the science is compromised by their political views - they don't even want to track down the data and study it closely because if they do it might demonstrate something incongruous with their political viewpoints. Until one reads the reports and makes an effort to understand the science, that person is "unskilled" in the sense that Dunning-Kruger posits, and is prone to overestimate his or her skill in assessing the "truth" of climate change - just as unskilled as I am at performing surgery or engineering the construction of a building.
John Cook actually posted about Dunning-Kruger over on Skeptical Science last year. The site is widely regarded as a respectable source that addresses the arguments for and against the human contribution to climate change. Cook states:
There are many with a cursory understanding who believe they're discovered fundamental flaws in climate science that have somehow been overlooked or ignored by climate scientists. Some take this a step further and believe they're being deceived . . .
Cook provides the following example:
In the discussion on whether CO2 is a pollutant, a graph was included to show CO2 levels over the last 10,000 years. The graph includes ice core data for CO2 levels before 1950. For values after 1950, direct measurements from Mauna Loa, Hawaii were used.
A comment was posted querying the data in this graph. Here is the comment in full:
"Whoa, hold on a minute here. CO2 readings from ONE LOCATION prove we have an enormous GLOBAL spike in CO2 levels? You've got to be kidding me. This is science? That would be like me taking hydrological readings at the bottom of Lake Superior and then declaring that the entire surface of the earth must be covered with water based on my readings.
By the way, isn't Mauna Loa an active shield volcano? (http://en.wikipedia.org/wiki/Mauna_Loa) Hmmmm, you don't suppose that's where all that extra CO2 came from, do you? C'mon, people, wake up. I find it shameful that this obvious manipulation is allowed to pass as "proof". This is certainly NOT an unbiased scientific conclusion."
The commenter is asking whether it's appropriate to take CO2 readings from one location. Particularly when situated near a volcano which are known to emit CO2. Surely a better metric would be a global average of CO2 levels? These are legitimate questions. However, I deleted this comment as our Comments Policy allows no accusations of deception, whether the attack is directed towards skeptics, scientists or myself. This restriction is necessary to keep discussion constructive and restricted to science. Unfortunately, the comment began with a commendable question and ended with a not-so-commendable personal attack.
If the comment had stayed on methods and not strayed into motive, I would have posted the following response. Mauna Loa was used is because its the longest, continuous series of directly measured atmospheric CO2. The reason why it's acceptable to use Mauna Loa as a proxy for global CO2 levels is because CO2 mixes well throughout the atmosphere. Consequently, the trend in Mauna Loa CO2 (1.64 ppm per year) is statistically indistinguishable from the trend in global CO2 levels (1.66 ppm per year). If I used global CO2 in Figure 1 above, the result "hockey stick" shape would be identical.
Unfortunately, this type of presumptive misunderstanding is seen all too often. Someone doesn't understand a certain aspect of climate science which is understandable considering the complexities of our climate. Rather than investigate further, they assume a flaw in the climate science or worse, an act of deception. This response is often more a reflection of the gap in their own understanding than any flaw in the climate science.
Perhaps most interesting when considering the Dunning-Kruger effect is that cross-cultural comparisons have demonstrated that Americans may be more prone to the effect than other cultures. If so, perhaps it is not surprising that American acknowledgement of the threat of climate change trails almost the entire rest of the world: "People nearly everywhere, including majorities in developed Asia and Latin America, are more likely to attribute global warming to human activities rather than natural causes. The U.S. is the exception, with nearly half (47%) -- and the largest percentage in the world -- attributing global warming to natural causes. Americans are also among the least likely to link global warming to human causes, setting them apart from the rest of the developed world."
Ultimately, I wonder if the Tea Party suffers from a politics-induced version of the Dunning-Kruger effect, and simply does not want to dig deeper. Actually, maybe they do want to dig deeper, but only so they can continue to bury their head in the sand.
- Blake Hudson
Sunday, August 7, 2011
* 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)
Saturday, July 23, 2011
I am in Seoul participating in the Korea Legislation Research Institute's conference, "Architecting Better Regulation to Overcome Energy Crisis." The conference has produced a fascinating discussion about how best to transition to a renewable energy economy.
Korea has been using a feed-in tariff ("FIT") system to promote renewables deployment. That changed in 2008 when the system came under criticism, in large part because it placed a strain on government finances. This goes to show that how policies are designed very much matters. FITs that raise consumer prices too much are subject to challenge on that ground, but those that choke government coffers may make the point even more acutely.
The plan now is to switch to a renewable portfolio standard ("RPS"), much like what many of the states in the U.S. are using. It will be a very interesting case study that puts these two mechanisms in sharp contrast. Debates about whether FITs or RPSs are better at incenting renewables deployment are longstanding; others have advocated that they can work together. Korea's change may add some clarity to the discussion.
It may also prove to drive home some of the themes that emerged from the conference speakers:
- Jannik Termansen, a vice president at Vestas, noted that what industry needs is not as much one scheme over another, but rather, "TLC": not tender loving care, but "transparency," a "long-term, stable commitment," and "certainty." He noted that installed wind capacity in the Asia-Pacific region has now surpassed that of North America, and looks to grow even further in coming years.
- Penny Crossley from the University of Sydney argued that renewables are important not just from a climate change perspective but also from that of energy security. "Energy security is another reason why renewables are important," she said. She noted six different ways that renewables promote energy security, and argued that we should commoditize those security benefits.
- Prof. Wu Zhonghu and Libin Zhang reminded us of the heavy role China will play in shaping the world's energy future. They noted that China is now a leader in world energy consumption, and that China remains in a transition from a centrally planned system to a market-based one. How this affects renewables development long-term remains to be seen.
- Nicolas Croquet highlighted the EU's 20-20-20 challenge. It is ambitious indeed: By 2020, 20% renewable energy use, a 20% reduction of greenhouse gas emissions from 1990 levels, and 20% decreased primary energy use. Is this a goal to which Korea, the U.S., and others should aspire? Should we go further?
It is a lot to chew on, both for the energy outlook for Asia and at home in the U.S. as well.
Monday, May 30, 2011
When confronted with friends or students who may be skeptical of the human role in climate change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO2 the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the beginning of the Industrial Revolution.
A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity.
Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms.
It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of CO2 and other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial.
For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:
- Blake Hudson
Monday, May 23, 2011
The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%). The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.
Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S.
The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned. Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments. In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose. The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.
A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope." Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.
- Blake Hudson
Wednesday, April 20, 2011
If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?
During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.
Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”
I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?
Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.
Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.
As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.
-- Brigham Daniels
Monday, April 11, 2011
Wetlands expert Roy Gardner, Stetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy. The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.
Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised. I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.
Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States. Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.
Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner
Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.
Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
• the geographic scope and activities covered by the Clean Water Act
• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
• the goal of no net loss of wetlands
• the role of entrepreneurial wetland mitigation banking
• the tension between wetland mitigation bankers and in-lieu fee mitigation programs
• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
- Blake Hudson
April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 6, 2011
In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act. (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.) As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.” Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change. While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources. While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.
(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.)
Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations. And, this is not just because many in Congress oppose addressing climate change (though that is true). In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations. The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade. For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:
Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?
ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.
And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.
It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers. Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost. While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods. It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.
-- Brigham Daniels
Update: The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote. However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.
Monday, March 21, 2011
You might expect an article titled "How the Budget Bill Will Decimate Conservation" to be found on the Environmental Defense, Greenpeace or a variety of other environmentalist websites. In fact, the article was posted at fieldandstream.com. When you search for "Field and Stream" on Google, the search heading reads "Hunting, Fishing, Survival, Guns, Gear." This is not the place conventional wisdom would suggest that you find an article criticizing recent Congressional proposals to slash the budget. The beginning of the article, however, sums up quite well the sentiment among conservationists who might also often be characterized as conservative:
"Unlike their counterparts at hard-line environmental groups, leaders of sportsmen's conservation organizations tend to measure their words. They avoid hyperbole, don't hyperventilate, and never hint that the sky is falling. That changed when they got a look at the budget priorities unveiled recently by the House of Representatives. Now they’re all looking nervously at the sky and using words like disaster, eviscerate, and destroy."
Last week I posted about Preserving Environmental Protection in a Down Economy, and how the current fiscal crisis creates difficult choices over the balance of government spending and environmental protection. The Field and Stream article is yet another example of how fiscal conservatism can often be at odds with conservation - even conservation supported by people who might under ordinary circumstances be categorized as fiscal conservatives.
The article highlights a point made last week that fiscal crises can sometimes cause the evisceration of needed environmental protections under the guise of fiscal necessity, noting that much of the budget bill's cuts "will not lower the deficit but simply take aim at environmental laws that polluting industries have opposed for years—laws that sportsmen's groups support because of their ultimate impact on fish and wildlife habitat."
Sporting groups have long been friends of the environment, often putting aside partisan politics when it comes to environmental protection - think President Teddy Roosevelt. Sporting groups are also a boon to the economy. As the article notes, "the federal government spends about $5 billion a year in conservation programs that are essential to the habitat that supports hunting and fishing, but it gets back about $14 billion in direct tax payments from people who make their livings in those industries--and that's a conservative estimate."
Ultimately, it would serve fiscal conservatives well to look to sporting groups' supported use of a scalpel instead of a sledgehammer when it comes to environmental protection. Professor Daniels' recent post about "Junk Politics" is nowhere more apparent as here, where fiscal conservatives demonstrate a lack of discernment over which government funded projects are waste and which ones serve a vital role in the continuance of our society. Sporting groups, with all their hunting, fishing, guns, gear and - perhaps most importantly - survival instincts, seem to discern the differences quite well.
- Blake Hudson
Thursday, March 17, 2011
While the people of Japan continue to deal with the devastation of the massive earthquake and tsunami last week, the tragedy there has reignited the debate over nuclear power worldwide. As the Washington Post reports, in the wake of the growing nuclear emergency in Japan, Germany announced that it will shut down seven of its older plants for safety inspections, and Switzerland declared a freeze on new nuclear construction.
At the same time, U.S. Department of Energy and Nuclear Regulatory Commission officials assured Congress of the safety of the domestic nuclear fleet, as did leaders in France of theirs.
Nuclear energy inevitably elicits strong responses from both sides of the aisle. Whether it is Yucca Mountain or the Skull Valley Goshutes' suggestion to store waste on their reservation, rhetoric is rarely scarce when it comes to atomic power.
There is no question that the people of Japan deserve all the world can offer in this time of dire need, but isn't there a much deeper question here about energy policy than the immediate nuclear debate that Fukushima has elicited?
It is another entirely to ask what is at the heart of our modern energy dilemma.
That is the question we should be asking. At a minimum, as Professor McAllister rightly noted earlier this week, it is a question about our energy consumption, and our failure to heed efficiency as a goal with the same vigor that our energy policy gives it lip service.
Even more fundamentally, however, it is a question about energy planning. Nuclear plants provide roughly 20 percent of the United States' current electrical production. In France, that figure is closer to 80 percent. Turning that train around cannot happen overnight.
It could, however, happen over a longer period of time -- if we want it to.
Fukushima is not Chernobyl. But however bad the crisis in Japan ends up being, it should now be as clear as ever that when it comes to energy, we face hard choices.
These choices are not necessarily dichotomies. We can solve climate change, and nuclear power may be part of that solution -- or it might not, or it might be only for awhile. Natural gas certainly will play a role. Carbon capture and sequestration holds promise, if we are willing to pay the higher prices and energy penalties the technology entails. Renewables are always there. The number of possible resource mixes, in short, for energy production is virtually limitless.
The question, then, is not: "Whether nuclear power?"
The question is: "What do we want our energy future to be?" And, correspondingly: "Will we plan for that future, or will we leave it to chance?"
As Amory Lovins reminded nearly a decade ago, "Our energy future is...choice -- not fate."
Wednesday, September 16, 2009
The Obama administration on Tuesday formally proposed joint CAFE-CAA fuel efficiency standards for cars and trucks that link fuel economy to reduced emissions from vehicles. Manufacturers would need to increase fuel economy 5 percent per year from 2012 to 2016, with new cars and trucks averaging 35.5 miles per gallon by 2016. Alternatively, manufacturers must meet a requirement that their vehicles on average emit no more than 250 grams of carbon dioxide per mile. With current technology, the measures are essentially equivalent. Current CAFE standards require that cars average 27.5 miles per gallon and light trucks average 23.1 miles per gallon. Download 2012-2016_CAFE_GHGN_PRM EPA Administrator Lisa P. Jackson estimates the proposed regulations would save 1.8 billion gallons of oil between 2012 and 2016, and prevent greenhouse-gas equivalent to the output of 42 million cars.
According to the Washington Post, Washington Post story President Obama appeared at a General Motors plant in Lordstown, Ohio, claiming the proposal is a boon for both the environment and the automobile industry because "it will give our auto companies some long-overdue clarity, stability and predictability." The Alliance of Auto Manufacturers, the industry trade group, supported Obama's remarks, stating "This is really the road map for automakers to follow." AAM estimated that the required changes would cost the auto industry $60 billion by 2016, but did not provide an estimate of price increase that consumers would experience..
The proposal, if finalized in a timely manner -- i.e. before Copenhagen -- is a victory on one front of the battle to reduce U.S. greenhouse gas emissions. The other front is the legislation to cap GHGs from stationary sources such as utility and industrial powerplants. According to the Washington Post, Senate Majority Leader Harry M. Reid (D-Nev.) said yesterday that the Senate may not act on climate legislation until next year. The Obama administration, of course, could pressure Congress by proceeding to regulate GHGs under the existing Clean Air Act through calling for new State Implementation Plans, requiring New Source Review permits impose LAER and BACT for GHG, and imposing New Source Performance Standards for GHG. However, the Administration is unlikely to play chicken with Congress absent proof that Congress is truly dragging its feet.
The Supreme Court in Massachusetts v. EPA almost 2 1/2 years ago determined that EPA has the power to regulate greenhouse gases from vehicles, prompting yesterday's action.
See the press release below:
EPA: Cathy Milbourn
DOT: Rae Tyson
FOR IMMEDIATE RELEASE
September 15, 2009
DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson Propose National Program to Improve Fuel Economy and Reduce Greenhouse Gases
New Interagency Program to Address Climate Change and Energy Security
“American drivers will keep more money in their pockets, put less pollution into the air, and help reduce a dependence on oil that sends billions of dollars out of our economy every year,” said EPA Administrator Lisa P. Jackson. “By bringing together a broad coalition of stakeholders – including an unprecedented partnership with American automakers – we have crafted a path forward that is win-win for our health, our environment, and our economy. Through that partnership, we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”
“The increases in fuel economy and the reductions in greenhouse gases we are proposing today would bring about a new era in automotive history,” Transportation Secretary Ray LaHood said. “These proposed standards would help consumers save money at the gas pump, help the environment, and decrease our dependence on oil – all while ensuring that consumers still have a full range of vehicle choices.”
Under the proposed program, which covers model years 2012 through 2016, automobile manufacturers would be able to build a single, light-duty national fleet that satisfies all federal requirements as well as the standards of California and other states. The proposed program includes miles per gallon requirements under NHTSA’s Corporate Average Fuel Economy Standards (CAFE) program and the first-ever national emissions standards under EPA’s greenhouse gas program. The collaboration of federal agencies for this proposal also allows for clearer rules for all automakers, instead of three standards (DOT, EPA, and a state standard).
Specifically, the program would:
· Increase fuel economy by approximately five percent every year
· Reduce greenhouse gas emissions by nearly 950 million metric tons
· Save the average car buyer more than $3,000 in fuel costs
· Conserve 1.8 billion barrels of oil
Increase Fuel Economy and Reduce Carbon Dioxide Emissions:
The proposed national program would
require model year 2016 vehicles to meet an estimated combined average
emission level of 250 grams of carbon dioxide per mile. Under the
proposed program, the overall light-duty vehicle fleet would reach 35.5
miles per gallon (mpg) in model year 2016, if all reductions were made
through fuel economy improvements. If this occurs, Congress’ fuel
economy goal of 35.0 mpg by 2020 will be met four years ahead of
schedule. This would surpass the CAFE law passed by Congress in 2007,
which required an average fuel economy of 35 mpg in 2020.
Reduce Greenhouse Gases:
Climate change poses a significant long-term threat to
Save Consumers Money:
NHTSA and EPA estimate that
Conserve Oil and Increase Energy Security:
The light-duty vehicles subject to this proposed National Program account for about 40 percent of all
Within the Auto Industry’s Reach:
EPA and NHTSA have worked closely to develop this coordinated joint proposal and have met with many stakeholders including automakers to insure the standards proposed today are both aggressive and achievable given the current financial state of the auto industry.
NHTSA and EPA expect automobile manufacturers would meet these proposed standards by improving engine efficiency, transmissions and tires, as well as increasing the use of start-stop technology and improvements in air conditioning systems. EPA and NHTSA also anticipate that these standards would promote the more widespread use of advanced fuel-saving technologies like hybrid vehicles and clean diesel engines.
NHTSA and EPA are providing a 60-day comment period that begins with publication of the proposal in the Federal Register. The proposal and information about how to submit comments are at: http://www.epa.gov/otaq/climate/regulations.htm for EPA and http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.43ac99aefa80569eea57529cdba046a0/
Draft Environmental Impact Statement:
NHTSA has prepared a Draft Environmental Impact Statement (EIS) for the proposed CAFE standards. The Draft EIS compares the environmental impacts of the agency’s proposal and reasonable alternatives. NHTSA is providing a 45-day comment period on the Draft EIS. Information on the submission of comments is provided at the above NHTSA Web address.
Wednesday, September 9, 2009
The Economist published an article Data Diving discussing new data that allows closer analysis of whether speculators are responsible for driving up oil prices. The short answer according to the speculators is probably not. And, even if they were, in the Economist's opinion, the critical importance of liquidity overwhelms any effect on higher prices.
The regulatory question is whether the Commodity Futures Trading Commission should limit the positions that speculators such as banks, hedge funds, and others take on oil because of the harmful influence that speculators have on the market.
... whether speculation has really been responsible for spiking prices is a controversial issue. In 2008 the Commodity Futures Trading Commission (CFTC) issued a report dismissing the role of speculators in last year’s startling run-up in prices. But banks, hedge funds and others who bet on oil (without a use for the stuff itself) still face limits on the positions they can take, if Gary Gensler, the new CFTC head, can show that their influence in markets does harm.
New disaggregated data show more clearly the role of speculators in the market:
On September 4th the CFTC added more evidence to the debate by releasing what it said were more transparent data on market positions. Before this month, the CFTC simply classified traders as “commercial” or “non-commercial” in its weekly report on the overall long and short positions in the market. Now it has started to disaggregate them further, into producers and buyers, swap dealers and “managed money”. The third category includes hedge funds.
The new data indicate that speculators (swap dealers and managed money) were long on oil in the week to September 1st, with managed money holding a net long position by more than a 2-to-1 ratio. Those actually involved in the oil business (producers and users) held positions that were net short by similar ratios. And the swap dealers and managed-money players are bigger in the market, both in terms of the contracts they hold and their own sheer numbers.
So, the speculators constitute the largest amount of the market and they take dramatically opposite positions in the market as compared with producers and users. Still, the speculators' analysts discount the ability of speculators to affect the market. I'm not market savvy enough to understand the speculators' analysis proffered by the Economist so would someone out there explain how this tells us that speculators are not influencing the market?
But analysts at Barclays Capital note that long swaps accounted for just 6.4% of total futures and options contracts, not enough to drive prices up on their own. Physical traders held more of the outstanding long positions (10.3%) and held even more short positions. This one set of numbers, in other words, does little to prove that speculators are overriding market fundamentals to drive prices. New quarterly data also released by the CFTC show that money flows to exchange-traded funds (ETFs) in commodities failed to correlate strongly with last year’s price surge.
Maybe some more numbers will help us sort this out (in favor of the speculators):
There are more disclosures to come. The CFTC says it will soon release the newly disaggregated data going back three years. If those numbers, like the quarterly ETF data, are equally unconvincing on the role of speculation, the case for limiting positions will be weakened.
And the Economists' speculator-friendly bottom line:
And a strong counter-argument remains: that speculators provide crucial liquidity. Even if they also have some effect on prices, taking them out of the game could well do more harm than good. It is tempting to look for scapegoats when high prices hurt consumers. But the real culprits for oil-price volatility may be much more familiar: supply, demand and global instability.
September 9, 2009 in Africa, Asia, Australia, Climate Change, Current Affairs, Economics, Energy, EU, Governance/Management, International, Law, Legislation, North America, Social Science, South America, Sustainability, US | Permalink | Comments (0) | TrackBack (0)
I teach Sustainable Natural Resources Law in the spring. Here's a new publication brought to my attention by Gerd Winter that looks like a great fit for introducing students to the fisheries area. A slightly edited summary of the book courtesy of Gerd appears below:
Towards Sustainable Fisheries Law
As most of the fish resources in the world's oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCN
Environmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources.
This publication is a result of an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarizes the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform.
Towards Sustainable Fisheries Law thus helps the reader to learn more about the international legal regime for fisheries management that is currently in place, improves the understanding of the institutional and legal problems related to fisheries management that countries face at the national level, and provides guidance for sustainable use of fish resources through a "legal clinic" for fisheries management.
The book was published as IUCN Environmental Policy and Law Paper No. 74. Free copies can be ordered at the IUCN office or downloaded (2,05 MB) from the IUCN website at: Toward Sustainable Fisheries Law
September 9, 2009 in Africa, Asia, Biodiversity, Books, Current Affairs, Economics, Energy, Governance/Management, International, Law, North America, Physical Science, Science, Social Science, South America, Sustainability, Water Quality, Water Resources | Permalink | TrackBack (0)