Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.)
My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid. As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific. Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home. 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.
(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)
The Long Journey Home Begins. In departing Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland. It was a long trip, but the transitioning away from China began immediately. Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed. Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down. Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis. We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor. We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.
And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy.
On our second or day back, I went grocery shopping with my four-year old son. I was mentally prepared for how psychologically fraught this might be. I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time. I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption. I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused. Everything was so sterilized, and there was just so much of it all. No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything.
I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands). It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.
I shut my eyes, centered my breathing, and considered how much we wanted those strawberries. And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping. Like I had never left. In fact, I knew exactly what to do. I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter. Suddenly, it wasn’t so strange after all.
Which became its own haunting experience: was all this excess really my personal norm?? So help me, it was. This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore. But why didn’t they know how abnormal it really was? Don’t they know what the rest of the world eats and where they find it? That most people alive today (or at any time in history) could never imagine a place like this? Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all? Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?
Strangers in Our Own Land. Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing.
It was hard to get over how clean the world suddenly seemed. Like a movie set, because it couldn’t really possibly be that clean. The streets and houses are clean. The air is brilliant; sweeter than I had imagined. Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight. We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure. Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates. But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.
There is not so much litter here in the U.S., and not so much dust. We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China. (No exaggeration: our East China home dusted in the morning was saturated again by evening. But then again, we all know what dust is mostly made of—dead skin cells. There are more than a billion people crowded along China’s East Coast; you can do the math.) Nature in the U.S. is spectacular. The grass really is greener; the sky improbably blue. The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it. And yet we also have to remember not to look directly at the sun, as we so often could in China.
This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky. But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood! We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school). And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance.
My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling. But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed. At first, the teachers didn’t know what to do with his hesitation to act independently. “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!” After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition. And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.
Cultural Pride and Cultural Shame. Public safety and sanitation is different here. It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along. I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China. I no longer worry about giving my child medicine when he is sick. That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown. I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.
But there are also moments of immense cultural pride. I cannot boast enough about American tap water, with which we are all hopelessly in love. Drinking directly from the sink never gets old, and Oregon water is especially heavenly. My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried. We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water. Nothing! (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)
Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water. It feels excessively wasteful. It boggles my mind to see people using it to sprinkler lawns and wash cars. “No, no,” I think, “are you crazy? You could drink that!” But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash. Which is obviously insane, especially in the arid West. I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore.
At Home in America. Our neighborhood is lovely with trees and grass and wildlife, but strange with people. It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car. If you don’t walk a dog, it’s easy to never see neighbors face to face. In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers. Public spaces are alive with community in China, but here, we are much more isolated. We live close to our neighbors, but with little random interaction. With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience.
Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points. Public spaces are so empty by comparison. The country is so empty, with vast unpopulated tracts of land. “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind. One student has his own room for the first time in his life—and he hates it. There is nobody to talk to. Nobody to care if you are even there or not.
While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first. But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore. A little dirt won’t hurt, we tell ourselves; how bad could that floor really be? (There’s barely even any dust!) And for that matter, why bother with organic? Why sweat the preservatives? After our year abroad, we have been fully absolved of the illusion that our bodies are temples.
But our house—goodness gracious—is ridiculously, shamefully big. I was deeply embarrassed when my Chinese students came to visit us in December. I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays. But at the same time, I cringed at the thought of showing them where I live. I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives. True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.
That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it. It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone. I returned from China with bursitis in my hips because Chinese beds are so hard. But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests. There is wall-to-wall carpeting, with padding beneath. On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable. Embarrassingly, my body wilted into the cushions like a crying child to her mother. My fallen arches stopped screaming about the constant concrete floor underfoot.
Of course, this too is purely a matter of culture. One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft. Everything in the US is so unbearably soft, he complained—even the floors are soft! “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.
Freedoms for Granted. The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet. Tiananmen. Terrorism. When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration. What our parents tried to teach us about our roles in the world.
My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself. In the wake of Tiananmen, these were survival instructions. They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background. Then they asked me what my parents taught me while I was growing up. I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary. We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.
In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague. I could write freely. I didn’t have to be purposely ambiguous about connecting names with events or statements. I could make full sentences rather than mnemonics. For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing. I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.
I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home. After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely. My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email. But now, nothing I said could hurt anyone anymore. I could relax! But no, I couldn’t relax. It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.
Between Worlds. So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left. Supermarkets aside, it was remarkably easy to rejoin American culture. Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules). I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time. I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away. I knew how to operate American culture like an expert. It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside.
Yet reverse culture shock sneaks up on you. A few weeks after we got back, I fell into what I can only describe as a brief but intense depression. I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to. I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer. Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home!
But these were guilty pleasures, most, because of course life is nicer in the first world. Back now to that dizzy place. How to feel about all this? What about those we left behind? So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind.
Then again, I know I’m not really leaving it all behind. Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now.
Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed. As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college. As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year. He was so proud to be Chinese again, if only for the day. The next day, he was happy to be an American again, romping freely around the neighborhood playground. So yes, he is a clearly a child of two worlds now.
And in some smaller way, I guess I am too.
Monday, April 23, 2012
I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.
I'd been called for jury duty.
Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.)
Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution.
Hard Bargaining Rewarded
The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan.
Settlement claims are divided into those for economic loss and medical harm. It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize. So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.
As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.
The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.
Lost Hope for a Speedy Trial?
I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.
The Main Course
When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.)
Is their number up? Today, not by a long shot. But we’ll see.
April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Friday, March 9, 2012
"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
- "Every second breath you take is provided by the ocean."
- "We have entered a new geologic age -- the anthropocene era."
- "The Gulf and other coastal waters have long been a dumping ground for human activities."
- "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."
- NOAA "has begun now issuing seasonal red tide alerts in the Northeast."
- "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."
- "It's not funded, but we have a national ocean policy."
- "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."
- "The economic benefit of the ocean is huge, and it is just beginning to be documented."
- "Everyone has a stake in the oceans."
- "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.
- "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.
- "Marine mammal issues will increasingly affect marine activities, especially shipping."
- "We need to balance that growing need for resources and food and energy with those areas that already have resources."
- "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."
"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law
- "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."
- "The problem is we have one ocean but many governments."
- "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."
- "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."
- "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."
- "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.
- Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.
- "Australia is also using the Reef as a reason to engage in climate change mitigation."
- An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).
March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, March 5, 2012
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)
On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.
On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.
Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.
For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-‐50 billion range. (Take $6 billion in compensation fund pay-‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?
To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil.
Monday, February 20, 2012
Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?
The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.
1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.
2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.
3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.
Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.
Friday, 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.
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)
Friday, August 19, 2011
In the months since the disaster at Fukushima Daiichi, it seems that nuclear energy increasingly has been in the news. This week was no exception. If anything, it was a particularly busy few days for news on nuclear energy. A few highlights:
- A U.S. envoy to Japan severely criticized that nation's government for their response to the Fukushima disaster. According to an AP story, Kevin Maher, head of the envoy and the former diplomat to Japan, said: "“There was nobody in charge. Nobody in the Japanese political system was willing to say, ‘I’m going to take responsibility and make decisions.’”
- Meanwhile, Japanese citizens are still dealing with the radioactive aftermath of Fukushima.
- In New York, residents are split over Governor Cuomo's plan to shutter Entergy's Indian Point nuclear generating station. According to a recent poll, 49 percent of those living near the plant oppose shutdown, while 40 percent favor it.
- The Tennessee Valley Authority unanimously approved a proposal to complete construction of the Bellefonte nuclear power plant in Hollywood, Alabama. Prior construction ended in the late 1980s.
- At the same time, Exelon's CEO John Rowe spoke out on the difficulty of building new nuclear plants in the U.S. "The country needs nuclear power if it is going to tackle the problem of climate change," he said. "But we must keep our hopes for new generation harnessed to facts. Nuclear needs to be looked at in the Age of Reason and not the Age of Faith. It is a business and not a religion."
- And the NRC approved a license for a uranium milling operation in Wyoming.
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)
Monday, May 2, 2011
Brian Fantana: I think I was in love once.
Ron Burgundy: Really? What was her name?
Brian Fantana: I don't remember.
Ron Burgundy: That's not a good start, but keep going...
....and put it in the environmental context...
Brian Fantana: I grew up in a bucolic little town in Colorado.
Ron Burgundy: Really? What is it's name?
Brian Fantana: Leadville.
Ron Burgundy: That's not a good start, but keep going...
I had this strange thought as I passed a sign last week that seemed to indicate an exit for a town called Phosphate, Montana (though after a thorough review of Google Maps, I believe it merely demarks a road).
Of course, just west of this location is a town called Mineral, Montana, and a bit further north is Arsenic Creek in Augusta, Montana. And I had just driven through Smelterville, Idaho before entering Montana. Then there is Nitrate City, Alabama, Zinc, Arkansas and Molybdenum Mountain in Alaska. One also has the option to drive down Uranium Drive in Lewistown, Montana or Asbestos Road in Cleveland, Georgia.
It is apparent that these locations are so connected with past land use activities - even activities damaging to both the environment and human health - that the descripters of those activities live on.
Particularly interesting is the prospective and retrospective view of the federal/state balance of authority in addressing the ills brought on by mineral mining and other types of contamination associated with land uses. Much of this contamination is due to land use decisions that are the constitutional purview of state and local governments. In other words, state government land use laws are responsible for there being, even today, a thick layer of phosphorus on the bottom of Lake Apopka in Florida, a location where I recently fished. Yet cleanup of these sites, after contamination has occured, is the responsibility of the federal government.
The Upper Clark Fork River in Montana is the largest Superfund site in the United States, and includes an area stretching from Butte to Anaconda to Missoula, Montana. The mining and smelting activity in Butte resulted in significant contamination of the Butte Hill (pictured right), and contaminated land for a stretch of 120 miles.
One might say these activities, and the subsequent codification of these activities in the names of towns and roads, are from a time before we knew the ills of land use driven contamination. Yet land use activities associated with agriculture, for example, remain regulated (or not regulated) almost solely by state and local governments, and are channeling copious amounts of nitrates and phosphates into the streams and rivers of the Mississippi River basin. This basin drains 40% of the U.S. land base. In the aggregate, this runoff contributes to a variety of ills, even dead zones in the gulf - the actions of a farmer in Minnesota affects the fishing operations of a Louisiana fisherman.
Ultimately, it would be far more efficient to have greater inputs representing the interests of the nation as a whole into decisions which pollute our environment, rather than national taxpayers later paying to cleanup sites contaminated due to the apathy of local authorities. These inputs do not have to be prescriptive, though that may be one approach, but can be horizontal between state and local governments or bilateral with cooperative federalism or incentives provided by the federal government.
In the end, Clearwater, Florida, Clearlake, California, and Greenville, Alabama sound like far more appealing destinations than Leadville, Colorado or Arsenic Creek in Montana. Perhaps going forward the former names will be the descripters of choice for the natural environment that makes up our towns, streams and mountains. That would be, as Ron Burgandy would say, a "great story. Compelling, and rich."
- Blake Hudson
Monday, March 28, 2011
Hari Osofsky, Minnesota Law School, has posted a thoughtful and engaging article titled "Diagonal Federalism and Climate Change: Implications for the Obama Administration" on SSRN. The article is forthcoming in the Alabama Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
Osofsky provides a clear view of the complexity of crafting climate change solutions, specifically noting that:
"The complex interactions between and among governments around the world at an international level, other branches of government at a national level, and multiple governmental entities at subnational levels—all of which also interact with nongovernmental organizations, corporations, international organizations, and private individuals—pose an ongoing governance challenge for the Obama Administration."
Osofsky describes how these complexities in the U.S. manifest through a "diagonal federalism" framework, which incorporates public and private actors vertically at all levels of government (local, state, national and international) and horizontally within specific levels of government. Her article targets how the Obama administration can approach diagonal federalism in a way that "leads to the most effective climate policy," and how to structure the above-described complex interactions in a way that most effectively addresses climate change.
All too often, discussions of climate change response are focused on forging political will for regulatory action on climate or fleshing out what types of climate change responses would be most effective to curb carbon emissions (regulatory v. market-based, top-down v. bottom-up, e.g.). Osofsky's article highlights an often overlooked aspect of climate change response; that is, how to navigate complex domestic legal structures to effectively implement climate change policy if and when it is forged. It is easy to say that "nations should enter into an international agreement on climate" or "nations should establish markets to foster unilateral nation-state initiatives to reduce carbon emissions." It is another thing altogether to assess the much more difficult questions of how to achieve those policy goals on the ground. Osofsky's article takes an important and much-needed step toward tackling the latter, and often more difficult, question.
"Diagonal Federalism and Climate Change: Implications for the Obama Administration"
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal). After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for understanding how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policymaking. The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, nongovermental organizations, corporations, and government.
- Blake Hudson
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
Monday, September 14, 2009
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)