Monday, February 6, 2017
For the most part, the past few weeks have not been uplifting. But I’ve been to a few inspiring events, both involving my fellow professors.
The first was a festschrift for Lesley McAllister, a law professor at UC Davis and one of the key players in the revival, several years ago, of this blog. Lesley is battling cancer, and her prognosis is not good. Those are dark circumstances, but the event was a celebration of life. Hearing about everything Lesley has done for her students, her colleagues, and for our understanding of environmental law—and hearing about her hope to keep doing that work in the time she has left—was a reminder of how much it can mean to live.
The second was a ceremony for my colleague David Takacs, who just received UC Hastings’ most prestigious award for his teaching. The award was well earned. David pours everything he has into teaching, and the results—including a standing-room-only crowd of students and alums at the event ceremony—are palpable. If you’re interested, you can read more about the event here.
Amid all the dark headlines, I’m grateful to David and to Lesley for reminding us how much our daily work can mean.
- Dave Owen
Wednesday, February 1, 2017
I was very glad to see the news today that Democratic senators boycotted the confirmation hearing of Scott Pruitt, the OK Attorney General nominated to lead the EPA. When I watched part of his January 18th hearing online, I found myself wondering why we bother. Republicans have the votes to confirm anyone they want, and evasive answers are often easy to give, so what’s the use?
Now it occurs to me that, even if they don't ultimately block the confirmation, the hearings serve the purpose of jolting the nominee out of her/his bubble and making her/him realize that there are a lot of voices that s/he will need to listen to that s/he probably hasn’t been paying any attention to. In other words, the purpose is to educate. A guy like Pruitt has only dealt with environmental issues in an ideological way – one of the pack of Republican attorney generals that fought selected Obama initiatives on the grounds of federalism or simple anti-regulatory zeal. He has never had to really think about why we need environmental laws and how to implement them effectively.
So that hearing might be considered "Environmental Policy 101." Happily, it was seven hours long, a sign (I think) of how much Pruitt needs to learn. But, it seems that he didn't pass the test. On Monday, Democratic senators on the Senate Committee and Public Works requested postponement of today's hearing due to Pruitt's lack of substantive responses to some questions, particularly regarding various conflicts of interest arising from his past record of suits against EPA regulations and his ties to the fossil fuel industry. Democrats are understandably concerned that he will fail to learn the most important lesson of all, that his new job would be to support EPA's mission of environmental protection, not to undermine and weaken the agency as he has in the past.
So, "Environmental Policy 101" continues, hopefully until Democratic senators are satisfied. But Republican senators will probably find a way to give Pruitt a pass, as they did today for Trump's nominees to lead Treasury and Health and Human Services: a surprise meeting to suspend committee rules and vote without the Democrats. Well, I hope Pruitt at least got a glimpse of the vast terrain of environmental policy that he is likely to be in charge of soon. Soon, it seems, the task of educating him will fall to all of us!
Thursday, January 26, 2017
I’m starting to think that the years I have spent studying environmental agencies in Latin American countries might come in handy. I spent about a year in Brazil in the early 2000, where I got to know several governmental environmental agencies. I interned with two state environmental agencies: CETESB in the industrialized state of Sao Paulo, and SECTAM, in the Amazonian state of Para. Along with an environmental agency in each of Brazil’s 28 states, there is also IBAMA, the federal agency. As you can see, this sounds familiar.
CETESB gained institutional strength in the early 90s, when Brazil realized that its largest industrial area (located in the most industrialized state, of course) was a big polluted mess. CETESB staffed up to about three thousand employees and took a lot of lessons from the US EPA. It successfully established a pollution permitting systems backed up by inspections and enforcement, and by the early 2000s had become a pretty functional agency, looked to as a model by many developing countries. SECTAM was a much more typical state agency, vastly underresourced and understaffed - 117 employees to deal with environmental protection throughout Para, which is 2.5 times the size of California. The federal agency, IBAMA, had about 5,000 employees total, and was generally perceived as weak and riddled with corruption.
In other words, CESTEB had developed some “capacity,” whereas SECTAM and IBAMA had not. Not that CETESB was perfect, but it had a degree of competence in both the administrative and technical aspects of environmental protection. I could talk to its inspectors about how they did inspections – because they were equipped enough to do them. I could talk to its department chiefs about certain policies – because they were equipped enough to develop policies. In contrast, when I talked to people from SECTAM and even IBAMA, there seemed to be much less to talk about. Lacking resources, the agencies simply didn’t do as much. And, in addition to lacking capacity, the lacked independence or “autonomy.” Agencies with little autonomy are dominated and steamrolled by the executive power (governor or president) who almost invariably favors economic development interests.
I recently returned to Brazil. There have been some good changes in the 2000s. IBAMA hired a lot of people and it became a functional agency, with more capacity and autonomy. Para’s state agency, SECTAM, changed its name to SEMAS, and has experienced some increase in capacity. CETESB has continued being CETESB – not perfect, of course, but still made up of a critical mass of knowledgeable and competent people trying to do the work of environmental protection.
And now to bring it all home: I saw a headline this morning announcing that Trump’s advisors recommend steep cuts in the EPA's staffing levels – reducing the workforce from about 15,000 people to 5,000 people. It is easy to see that the Administration has it in for the EPA, what with the gag order that was imposed to prohibit employees from talking with the press or public and the nomination of Scott Pruitt for the top job of Administrator. Pruitt's most notable environmentally-related deeds as Oklahoma’s Attorney General include establishing a “federalism unit” to fight Obama regulations and suing the EPA multiple times.
It should be clear what can happen here, because it happens all over the world. Our environmental agencies can be made to lack capacity and autonomy – and then they won’t work. And let us not forget: they have been functional agencies that have worked well. This is not the place to recount the many achievements of EPA's work implementing our federal environmental laws over the past 4 decades, but the benefits to our health and welfare FAR outweigh the costs.
Wednesday, January 25, 2017
By: Lesley K. McAllister, UC Davis School of Law
Hello! It’s been a while since I blogged here at Environmental Law Prof Blog, and I feel that I am now being called back to it. I, like many environmental law aficionados, am very worried about how the new administration will work against environmental protection. I have lots of reasons to just check out and be quiet about it. The biggest one is that I probably don’t have long to live. I was diagnosed with stage IV lung cancer over three years ago. Aggressive treatment has slowed its course, but the cancer is widely-diffused in my body, and I’ve heard that that means it will kill me.
I have been a “member-scholar” of the Center for Progressive Reform (CPR) for about eight years. Over fifteen years ago, soon after George Bush’s administration began, Professors Rena Steinzor (University of Maryland School of Law), Tom McGarity (University of Texas School of Law), and Sid Shapiro (Wake Forest University School of Law) founded CPR. They did so because they and others in the public interest community perceived a need for a progressive think-tank to focus on environmental, health and safety, and consumer protection. At that time, like today, the White House and both chambers of Congress were controlled by the Republican Party. Then, like today, they knew they were going to see serious and multifarious attempts to undermine our environmental laws, with the assistance of well-funded think tanks like the Heritage Foundation and the Cato Institute.
CPR’s founders aspired to assemble and mobilize voices from legal academia to inform policymakers and the public of the critical importance of effective protective regulation. As a collective of working scholars joining together to participate in the public debate, CPR is as independent of politics as an organization can be. CPR doesn’t adopt institutional positions on issues, but rather encourages scholars to speak out themselves.
Since its founding, CPR has consistently aired perspectives and knowledge timed to counter countless anti-regulatory initiatives through op-eds, reports, news alerts, CPRBlog, and various other means. CPR scholars are often invited to give Congressional testimony because of their expertise and independence. Areas of focus have included climate change, food and drug safety, good government, and many others.
But CPR hasn’t yet worked itself out of a job. It now has over 50 member-scholars, and its mission is more relevant and important than ever. Visit www.progressivereform.org if you’d like to support CPR and enable more CPR work to make it into our public policy debates (please see the top right hand corner “DONATE” in small letters). I can assure you that CPR uses every dollar to maximum impact. (Of course, there are other great environmental organizations to donate too, and if you have a different favorite, then donate to them!).
With this post, I pledge to try to use some of the good time and energy I have left to blog about why we need laws and regulations that protect us, how protective laws and regulations are now under attack, and what we can do about it.
January 25, 2017 | Permalink
Tuesday, December 20, 2016
On November 10, 2016, federal district court Judge Ann Aiken issued an astonishing decision in the atmospheric trust climate case, Juliana v. United States. The decision holds that the plaintiffs in the case, who include children and young adults ranging from 9 to 21 years old, have a fundamental right “to a climate system capable of sustaining human life.” The decision further recognizes that the federal government has a public trust obligation to protect resources from the consequences of climate change, including ocean acidification and sea level rise. As a result of this decision, the plaintiffs will now be able to go to trial to prove, among other things,
that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.
If the plaintiffs succeed at trial—as I believe they should—the case should then proceed to the relief stage. Plaintiffs have asked the court to order the federal government to protect the plaintiffs’ fundamental rights and to ensure protection of the trust assets by developing a plan to reduce greenhouse gas emissions. Although resolution of the case could take years, and will almost certainly involve appeals to the Ninth Circuit and Supreme Court, the Juliana decision is already a landmark decision. In the context of this blog series, moreover, the Juliana decision illustrates how and when zero-sum framing is a useful environmental and moral device.
Monday, December 19, 2016
ELC #12: Deconstructing Zero Sum Environmental Games: Bears Ears National Monument as Reparations and Reconciliation
Owls versus jobs. Water for farmers versus water for salmon. Big dam versus tiny fish. Environmental disputes are often described in this way, as contests over limited resources that require one side to lose in order for the other to win. Many environmental conflicts may not be zero-sum games according to technical game theoretic definitions, but characterizing them in this way has traction with the media, the public, and the parties themselves. The zero-sum description frames our debates, often hardening positions and limiting the range of options, both practically and conceptually. Indeed, “I win, you lose” views of the world seem to be corroding every aspect of our public and private lives.
Rather than tinker from within this frame, what if we pulled back the lens and viewed natural resource conflicts in their historical and social contexts? Owls-versus-jobs is the snapshot. The long view would describe how federal forest service policies subsidized unsustainable logging, resulting in undiversified and therefore fragile economies. It would also include how efforts to undermine labor organizing in the Pacific Northwest prevented alliances between environmentalists and loggers. Another part of the story would acknowledge that limitations in federal environmental laws lead to over-reliance on single species strategies. The longer view is harder to describe in a bumper sticker. But excavating the historical forces that lead to particular environmental disputes may help us move beyond pat and unhelpful dichotomies. In the heat of the conflict, it may feel like owls are the opposite of jobs, but reifying that feeling is neither historically accurate nor normatively attractive. Who wants to live in a world where we have to choose between those two?
December 19, 2016 | Permalink
Friday, December 16, 2016
Local communities and their ecology suffer hardship from a zero-sum game over governance authority. This game pits communities (and their local governments, including special purpose districts) against state governments in a constant and unwinnable(ish) conflict over the authority to regulate (or, often, not regulate). Although this zero-sum game is a struggle between states and communities over the authority to regulate, the manner in which it is skewed against local communities has dire consequences on the environment and discourages local communities from protecting and investing in their local ecology.
In our federalist form of government, states hold plenary power. Since the mid-nineteenth century, most courts have held that local governments are creatures of and subject to the whim of state legislatures. Two limitations on state legislative control over local communities are state constitutions (see, e.g., Robinson Township v. Commonwealth (holding state’s attempt to preempt local government regulation of fracking was in violation of state constitution)) and state statutes (see, e.g., Virginia Code § 15.2-2280 (authorizing local communities to regulate land uses)).
State and local governments frequently exercise regulatory authority over critical environmental issues, such as those related to fracking, waste management, and water. As a legal matter, local authority to intervene in potentially controversial activities may turn on whether that authority has been preempted by the state or even the federal government. While the preemption analysis varies by state, it typically prohibits local governments from regulating: (1) where the state expressly preempts local action; (2) where the state heavily regulates the field (but does not expressly preempt); and (3) where there is a direct conflict between the state and local regulation (again, in lieu of express preemption).
December 16, 2016 | Permalink
Thursday, December 15, 2016
At last, energy—that elusive thing that exists all around us, sustains myriad plant and animal life, and illuminates our homes—no longer requires massive infrastructure to be harnessed and converted into electricity. Technology now allows individuals and communities to erect solar panels that convert the sun’s rays into electric currents to power homes, hospitals and community centers. This rare moment in the transition of the energy sector from a system in which electricity is generated by burning fossil-fuels in centralized locations managed by public utilities, to a system where a range of electricity generation and management alternatives exists, has spurred a heightened level of regulatory and economic turmoil in jurisdictions around the United States. The disequilibrium created by customer-sited energy generation threatens to destabilize and reinvent our energy system. If only we would let it.
Industry observers attribute the swift rise of rooftop solar adoption over the past decade to progressive policies and rapid technological advancements. Tax incentives have effectively decreased the cost of owning and installing solar panels. Net energy metering policies pay rooftop solar owners at the customer’s retail electricity rate for each kilowatt-hour of electricity generated by the customer. These programs leave some customers with electricity bills totaling zero dollars, effectively turning their electricity meters backwards when solar panels are fully engaged.
This dramatic increase in customer-sited distributed energy generation has challenged the utility sector and destabilized the so-called “regulatory compact,” whereby utilities receive a regulated reasonable return on electricity infrastructure investments in exchange for providing electricity. The overall dynamic confronting utilities in this transitional moment has led to what some have termed the “utility death spiral.” In the new, distributed-energy paradigm, utilities can no longer rely on the prior revenue levels from their customer bases to recover costs for infrastructure improvements or to recoup their regulated reasonable return on such investments. Further, in an era of increased distributed energy generation, utilities cannot easily predict what types of infrastructure investments are needed. Thus, they face a “death spiral,” a term that reflects an operating environment with rife economic uncertainty.
December 15, 2016 | Permalink
Wednesday, December 14, 2016
By Inara Scott
The popular notion of a zero-sum game is a scenario in which, for one party to gain value, another party must lose it. We can imagine a pie cut into six pieces, with six people standing beside it. For any one individual to get two pieces means someone else must go hungry. One of the key assumptions here, of course, is that the number of slices of pie is fixed. We can’t add to the pie.
Any simplistic metaphor is certain to break down under scrutiny, but in the energy context, this image is particularly inapt. In December 2005, natural gas was trading around $15.39/MMBtu. Today, the price is closer to $2.90. The reason for this precipitous drop? New techniques in fracking and horizontal drilling in shale rock, which allowed developers to shake loose massive stores of natural gas that had previously been inaccessible. The pie suddenly got a whole lot bigger.
Improvements in materials and efficiency have also drastically lowered the cost of renewable energy generation—so much so that current cost projections for 2020 are half what they were about a decade ago. The cost of wind energy alone fell almost 60% from 2009-2015. If we think of the pie as the amount of renewable energy we can generate per dollar, there can be no doubt it continues to grow.
Monday, December 12, 2016
ELC Essay #8: Making Economic Development and Job Creation Drivers of Serious Action on Climate Change and Environmental Protection
We’re fighting for policy changes that will make it possible for us to have better choices; utilities that offer us renewable options, electric trains that make short-haul flights obsolete, public transit. Exxon and its ilk have been fighting for decades to keep these choices out of our reach, and then claim that we are voting with our dollars every time we sit in traffic or heat our homes with fossil fuels supplied by a utility that has a monopoly. They can play gotcha as much as they want, but all it proves is how badly we need better options.
One of the most longstanding narratives in environmental law and politics is the alleged necessity of choosing between development and environment. The narrative persists in industrial projects, dams, mines, shale-gas development, highways, construction projects, and in a variety of other projects and activities. As Bill McKibben points out, it also persists in the debate about what to do about climate change. In every case, some people win, and some people lose. The narrative, based on conventional development, has a built-in zero-sum game—development or environment.
A competing narrative, which has been slowly gaining supporters over several decades, is built on the idea of sustainable development—development and environment. When there are attractive ways of making environmental protection and economic development mutually reinforcing, there is a way of escaping the zero-sum framing of environmental issues, including climate change. As Bill McKibben says, people want better choices.
December 12, 2016 | Permalink
Friday, December 9, 2016
Environmental pollution lands us in zero-sum games. The more interesting question is: Do we discover these games? Or do we invent them? In other words, are there hard environmental limits on how much anthropogenic pollution natural systems can absorb, which we eventually discover? Or do we create zero-sum games for pollution purely as a result of our own goals for both ecosystems and social-ecological systems (SESs, a recognition that human societies are both part of and depend upon functioning ecosystems)? In fact, we do both, and the intersection of the two in a climate change era is worth examination.
There is no doubt that natural systems respond to, and can be altered by, human pollution, and at all sorts of scales. The emerging discipline of resilience theory posits that ecosystems can exist in alternative stable states and that they transform from one state to another by crossing an ecological threshold. While resilience theory imposes no normative value on these alternative states, as a pragmatic matter humans tend to find one state more desirable than the others. Relatedly, and importantly, crossing an ecological threshold in one direction is often easier than reversing the process. Thus, when ecosystems are in human-desired states, keeping that system from crossing an ecological threshold in the first place is often far less costly than trying to restore the ecosystem afterwards. As a result, identifying ecological thresholds and the most desirable of alternative states can help to inform legal and policy goals.
December 9, 2016 | Permalink
Thursday, December 8, 2016
The political climate that facilitated the passage of major pollution-control statutes, such as the Clean Air Act (CAA) and the Clean Water Act (CWA), may seem difficult to imagine today. When Congress passed the major pollution-control laws in the 1970s, it was responding to a growing consensus that federal environmental regulations were essential to protection of human health and the environment. In their absence, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations in an effort to attract industry and economic growth. Policymakers also recognized that environmental pollution increasingly presented problems of scale; pollutants emitted into the air and discharged into water bodies did not always remain within the political borders of a state. A federal role was perceived as a necessary means to ensure the efficient regulation of interstate pollution.
Today, political support for new environmental regulations at the federal level appears less uniform, particularly given the resistance to federal regulation by a sizeable number of states. Along with industry, states now routinely file lawsuits challenging new environmental regulations as abuses of federal power. Instead of thinking seriously about shared governance, the political default in many states is to litigate with the hope of invalidating the federal rule. This turns environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if it stands, the state loses. When states treat environmental governance as a zero-sum game, they preclude the consideration of win-win scenarios. Along the way, time, effort, and money are wasted in protracted legal battles that delay important protections for human health and the environment.
Wednesday, December 7, 2016
The issue addressed by this meeting of the Environmental Law Collaborative—zero-sum thinking and its application to environmental law—questions whether environmental quality is appropriately characterized as a zero-sum game in which regulation is an expensive, job-destroying monster. Describing a choice as a zero-sum game can be insightful for understanding the architecture of choice in a battle of particular circumstances. The notion of the zero-sum game comes from game theory and describes an “I win, you lose” (or vice versa) situation in which the amount you lose is proportional to my gains in winning. The game provides insights into how particular resolutions may have been predictable or even beneficial under the circumstances. However, when posed as a zero sum-game, environmental quality appears too costly: every dollar spent on the environment takes food from the table of some employee.
Aside from the problem that the zero-sum characterization is seldom, if ever, an accurate description of environmental regulation, this zero-sum framing presumes that environmental values are somehow divorced from economic livelihoods.
December 7, 2016 | Permalink
Tuesday, December 6, 2016
By David Takacs
As humans appropriate ever more of the planet’s bounty, leaving less for nonhuman species and the ecosystems they inhabit, conflicts emerge over who or what gets which resources. Such skirmishes result in some of the unproductive zero-sum framings we too often see.
These zero-sum skirmishes extend to what are the appropriate frames through which to view the natural world, and thus how we set priorities to manage that world. Are ecosystems gardens to be cultivated and manipulated for human needs? Or are they wildernesses imbued with intrinsic value, whose species are valuable for their own sake, to be managed for continued ecological function and evolutionary potential?
In three of my research arenas, promoters of new conservation strategies split the difference, modulating between nature as sacred and nature as profane. In all cases, these three multifaceted approaches to solving problems serve as counter-narratives to win-lose, zero-sum environmentalism.
Public funders and private investors are pouring billions of dollars into Reducing Emissions from Deforestation and Forest Degradation (REDD+) in the developing world. In REDD+, investors pay people to preserve carbon in trees, and then sell credits based on the stored carbon to those who wish to offset their own greenhouse gas emissions. In biodiversity offsetting, rapidly gaining currency as a tool that (potentially) promotes prudent economic and ecological planning, developers degrade biodiversity in one place in exchange for paying to protect it elsewhere. The South Africa government is managing water as ecological infrastructure in its attempt to fulfill the Constitutionally guaranteed right to safe, clean drinking water. Focusing on the 8% of the nation’s land that provides the source for 50% of its water policy makers plan simultaneously to create more and cleaner water, augment local ecosystem services, protect nonhuman species, and create jobs for poor people in rural areas. Each of these examples presents non-zero sum solutions to environmental problems and broadens the way we frame the problems in the first place.
Monday, December 5, 2016
Call for Presentation and Panel Proposals for its Third Annual Sustainability Conference of American Legal Educators. This conference will be held on May 12, 2017, at ASU’s new law school building in downtown Phoenix, AZ. Roughly 50 faculty speakers from throughout North America will be selected to speak at the conference, and their airfare (up to $500) and lodging are covered by ASU.
Here’s a link with more information about it: https://conferences.asucollegeoflaw.com/sustainabilityconference2017/. Carol Rose will be this year’s keynote speaker
In connection with the conference, there’s also a $10,000 prize contest for recent sustainability-related law journal articles that are ALREADY WRITTEN! Entrants must merely send five offprints of their article and a cover letter to the address in the Call for Entries. Here’s a link to that, too: https://conferences.asucollegeoflaw.com/sustainabilityconference2017/morrison-prize-contest/.
December 5, 2016 | Permalink
The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017.
Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.
Speakers are invited to discuss climate change law on all themes and content areas. Articles will be published in the Buffalo Environmental Law Journal's summer issue. Some suggestions for panel topics include --
Natural resource security
Climate change and endangered species
Air and water quality
National and international security
Human rights and environmental refugees
Environmental Justice and climate change
Comparative climate change law
Climate change tax and finance
To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to firstname.lastname@example.org by 5pm EST on December 16, 2016.
Posted by Jessie Owley
December 5, 2016 | Permalink
Yesterday, the Army Corps of Engineers issued a statement that it would “not grant an easement” for the Dakota Access Pipeline (DAPL) to cross Lake Oahe “at the proposed location” (within half a mile of the Standing Rock Sioux Reservation) “based on the current record.” The Army Corps instead will conduct a further evaluation of the pipeline route under NEPA implementing regulations, including a “robust consideration and discussion of alternative locations” for the crossing. The DAPL, which is 99% complete, would bring half a million barrels of oil per day past the Standing Rock Sioux Reservation en route from the Bakken oil fields of northern North Dakota to refineries located in Illinois. While opponents of the pipeline are celebrating the Corps’ decision as a victory for the tribe and for Lake Oahe, there may be more to this story in the coming weeks. Three things to watch:
1. The Litigation –Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers is the tribe’s suit seeking to enjoin construction of the DAPL under the Rivers and Harbors Act, the National Historic Preservation Act, and the Clean Water Act. After the district court ruled that the Corps satisfied its tribal consultation obligations under these three statutes (and CEQ guidance on the administration of federal statutes impacting tribal affairs), the tribe appealed and the D.C. Circuit halted construction temporarily to consider the consultation issue. The D.C. Circuit later lifted the stay, allowing construction to proceed, and is currently considering the merits of the consultation issue. The merits briefs are due in the next several weeks, but given the Corps’ statement yesterday, the tribe has filed a motion to dismiss this appeal as moot, which is unopposed. Therefore, this appeal’s days are numbered. However, this litigation did not involve the easement required to cross under Lake Oahe pursuant to the Mineral Leasing Act (MLA), which is the final federal approval that Dakota Access needed to finish the pipeline. If the result of the new NEPA analysis is that the pipeline should cross in the same location as originally proposed (considering there is another one following roughly the same trajectory under the lake, this is not outside the realm of possibility), the tribe would likely re-file the consultation claims if the Army Corps does not fully engage the tribe in the promised NEPA review (see number 3), along with an appeal of the easement decision.
2. The Treaty Rights – The Corps’ decision is based in part on the tribe’s “treaty hunting and fishing rights.” It is unclear from the language of the Corps’s statement whether the Corps is reviewing treaty claims to the lake itself or usufructuary rights in the lake, although it is most likely the latter. Under the 1851 Treaty of Fort Laramie, which was the original treaty partitioning the Great Sioux Nation, the tribes (Standing Rock Sioux among them) retained off-reservation hunting and fishing rights in and around the Missouri River, part of which later became Lake Oahe. In Article V, the Treaty provides that the tribes “do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.” Unless successive treaties (or legislation) abrogated these off-reservation rights, the Sioux still possess them, and any pipeline completion route could not interfere with the exercise of these rights. Unraveling this history and mapping the hunting and fishing locales may take the Corps some time, as it will require extensive consultation with the tribes (the Standing Rock Sioux are not the only tribe with usufructory rights in the lake, either, which could complicate this portion of the review). If the tribes disagree with the Corps’ conclusions on the scope and nature of the treaty rights, that could form the basis for an additional federal claim.
3.The Army Corps under Trump – The Army Corps’ statement yesterday was a policy position, essentially promising further NEPA review of the decision already issued – allowing DAPL to cross at the same location as currently proposed. Indeed, Assistant Secretary Darcy stated that she had concluded that “a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis…” and that she could not give that authorization “based on the current record.” She did not say that a) she would not grant authorization for the current proposed crossing in the future, based on a more complete record, or b) that there was any solid basis upon which to completely and finally eliminate the current proposed location. She only stated that the Corps would more thoroughly review “reasonable alternatives”, “spill risk[s] and impacts”, and “treaty rights” to comply with the MLA and NEPA. Even if the agency completes this review under President-elect Trump (which it might not, given the President-elect’s somewhat freewheeling approach to the rule of law thus far), there is no indication that the Corps will not revert back to the crossing at Lake Oahe, as long as it does not interfere with treaty hunting and fishing rights.
- Hillary Hoffmann
By Jim Salzman
Politicians love to talk about the glossy world of “Win-Win Scenarios.” Battling climate change will also grow the renewables sector and create thousands of green jobs. Catch shares programs will increase the fishing community’s incomes and also conserve fisheries. Energy conservation saves fuel bills and drives efficiency improvements. Famed Harvard Business School professor, Michael Porter, has even hypothesized that countries with stricter environmental regulations are more competitive in the global marketplace.
To be sure, there are plenty of examples of win-win scenarios in the environmental field, but it’s wishful thinking to assume that many, much less most, environmental conflicts can be solved with all parties better off. It is often that case that one or more parties feel trapped in a zero-sum game. Farmers in the Klamath Valley see their irrigation water allocation reduced because the endangered salmon need more. Fish win. Farmers lose. In the 1990s spotted owl saga in the Pacific Northwest, logging companies lost access to old growth redwood stands that were deemed to be critical habitat for the endangered owl. Owls win. Loggers lose. One could easily provide similar examples in the pollution context.
Most environmental policies have winners and losers. One might argue that these policies benefit society overall, but it sure doesn’t feel like a benefit to the local resource-dependent communities. These are decisions with diffuse winners and locally concentrated losers. To them, they are trapped in a zero-sum conflict where they need to stand their ground against opposing interests who would have them reduce their emissions, water usage, or timber harvest. "Either I win and continue the status quo, or they win and I have to pay, or perhaps even go out of business."
Given the ubiquity of such zero-sum framing, it shouldn’t be surprising that environmental law has developed a range of strategies to address them. They fall under three basic categories: screw them, grow the pie, or regulatory steam valves.
- The first category, Screw Them, recognizes the zero-sum game for what it is and lets the consequences flow. Put another way, there are some activities or actors that should lose out. This is a normative position, of course, that favors certain results over others. Companies that discharge dangerous toxics into a local stream should be forced to stop, even if it does hurt their bottom line. In the zero-sum conflict of continuing polluting versus safe waters, safe waters should win. This may seem a satisfying strategy, but keep in mind that the measure of “unacceptable” behaviors varies according to the observer. Conservation interests may well view overgrazing on public lands as a travesty that has gone on for far too long. Ranching interests take the opposite view. Which will win out in a zero-sum conflict of grazing versus range conservation? That depends on which administration is running BLM. A strategy that assumes the losers in zero-sum conflicts deserve to lose looks great if your team is in power. It can seem punitive or worse if you are on the losing side. No wonder, then, that this strategy leads to protracted litigation, overblown rhetoric, and, in the extreme, armed standoffs such as the one that occurred at the Malheur Wildlife Refuge.
- A second category seeks to Grow the Pie. What looks like a zero-sum game with only eight slices of pie to go around morphs into a win-win scenario if suddenly the pie is enlarged with four more pieces to go around because the government pays off the losers. We generally see this approach where the potentially losing party is politically powerful. As J.B. Ruhl has documented, agricultural interests are more often paid to protect the environment than required to do so. Some fisheries facing restrictions have benefited from vessel buyback programs. The farmers and fishers may be losing, in the sense their actions are restricted, but at least they are being paid for the sacrifice. Similarly, the 1990 Clean Air Act Amendments explicitly sought to compensate coal mining communities for the expected losses in jobs digging high-sulfur Appalachian coal. Growing the pie can be a popular strategy for the parties involved, but not so attractive to taxpayers and those concerned over budget deficits. If regulation proves politically infeasible, however, then growing the pie may be palatable. Even here, though, the parties may not all be happy. Penn Central was certainly not content to receive Tradable Development Rights for Grand Central Station in place of its lost air rights, nor do some environmental groups approve of paying farmers not to pollute.
The third category presents the Regulatory Flexibility of growing the pie. Here, the losers are paid off through regulatory paths rather than through dollars. This is evident in the Clean Water Act’s 404 permit program for wetlands. On its face, the program seems to prohibit dredging and filling wetlands under a wide range of circumstances. In practice, wetlands mitigation banking acts as a political steam valve, allowing much development to proceed by compensating with constructed wetlands somewhere else. We see a similar dynamic with habitat conservation plans. Developers who would have perceived the lack of a permit as a zero-sum dynamic—local economic growth versus a wetland or endangered fly—instead see, if not a win-win dynamic, at least a situation where the costs of doing business are acceptable and the project goes forward. Similar to growing the pie, regulatory steam valves tend to be put in place when the losers are politically powerful and regulating them runs either legal or political risks.
None of these strategies is necessarily better than the other. The relative merits of Screw Them, Grow the Pie, and Regulatory Flexibility will vary depending on the politics of the actors, the nature of the harm, and the public funds available. The key point is that zero-sum games need to pay special attention to the losers, whether they warrant compensation and, if so, what type of benefit is most appropriate.
Friday, December 2, 2016
by J.B. Ruhl
In Nonzero: The Logic of Human Destiny, Robert Wright offers a sweeping view of human evolution that culminates in his argument that modern society has become so complex and interconnected that there are no true “zero sum” games to be played between people or institutions. Economists and game theorists use the zero sum game concept to describe a situation in which each participant's gain (or loss) of utility is exactly balanced by the losses (or gains) of the utility of the other participant(s). A zero sum game isn’t necessarily a bad situation—in fact, it’s what economists argue markets and trading should produce. The reason is that if the situation is nonzero sum, then by definition one participant can gain by more than another loses, or even both can gain. That’s why sellers sell products and consumers buy them! The market depends on traders to identify nonzero sum situations and trade away until they reach zero sum, which is what economists refer to as Pareto optimality.
Being in a zero sum game can be a sticky situation, however, if there is some reason why redistribution of the pie is necessary. If it were just up to the participants in a zero sum game, and assuming they are what economists describe as “rational economic actors,” they would not agree to redistribute the pie unless someone (irrationally) volunteers to be made worse off to make someone else better off. But it is not always up to just the participants. Sometimes government, in pursuit of a desired social policy, intervenes to force a “trade” at least some of the participants would not voluntarily (rationally) make.
Thursday, December 1, 2016
This past summer, a small but hardy group of law professors gathered to discuss the concept of zero-sum environmentalism. In particular, we had set for our agenda to get “beyond” zero-sum environmentalism. The suggestion was that there is a dominant approach to environmental law issues that frames them as zero-sum and that this framing can be damaging to environmental progress. What we grappled with, though, is whether environmental problems really are (at least at times) zero-sum. Is the description of an environmental issue as zero-sum ever accurate? Are laws treating issues as zero-sum when they shouldn’t be doing so? Or maybe ignoring a zero-sum framework that is at play? Perhaps there are no zero-sum environmental dynamics in the real world and instead “zero-sum” is just the language we (or some of us) use to describe environmental tradeoffs. Zero-sum as used in the context of environmental policy implies stark winners and losers. If the environment wins, the economy must lose. To protect the owls, we destroy the lives of the loggers. To prevent global climate change, Americans must completely change life as we know it.
Our discussions revealed (unsurprisingly) that we all came to this question with different examples, assumptions, and solutions. Some people rejected the idea that zero-sum problems ever actually exist and suggested that reliance on the framework and use of the term can be damaging to environmental governance. Not just because it is an overly constrained view of how tradeoffs actually work, but because the language of zero-sum necessarily creates a combative stance that can impede collaboration and creative thinking. Others suggested that for some environmental concerns, the zero-sum framework was actually underused. That is, we might reach better results if we confront the actual tradeoffs. What work does it do to label environmental problems a zero-sum game? In this case, climate change and biodiversity protection served as key examples. Maybe we do need to emphasize that you can’t have your cake and eat it too. Building that hospital will indeed lead to the extinction of a species. Putting the conundrum in stark terms might help highlight the need for embracing the principle of in dubio pro natura (when in doubt act in favor of nature). Most of us agreed, however, that when we see the zero-sum rhetoric or when we use it ourselves, we aren’t really talking the language of economists. We are taking their term and simplifying it (taking a complex topic from another discipline and simplifying it for our use is something we legal academics are good at). But more than that, we realized that we aren’t actually the ones using this term. In fact, it is not heavily used in the legal academy. It is used in the media, though, and by politicians.
This chart shows an increase use of the phrase “zero-sum” in books first appearing around 1940 and increasingly used since then with a tapering off beginning in 2000. However, overall there is not a high frequency of use of the phrase. Zero-sum Environmentalism did not appear often enough to be plotted with google’s ngram function. What would be more interesting is to chart this phrase in speeches, academic publications, and news articles, but well … I don’t know how to do that.