Environmental Law Prof Blog

An Article Worth Reading

On Tuesday, the New York Times published an article that all academics--particularly new ones--probably should read.  The article discusses the increasing presence of so-called "predatory" academic journals and conferences.  According to the Times, these journals and conferences generally adopt names that sound respectable and legitimate, but their peer review processes are minimal, and they often hound authors for exorbitant and undisclosed fees once they've agreed to publish.  They also solicit articles aggressively, which may explain the odd-sounding conference and publication invitations I routinely receive. 

Among other reactions, the article made me appreciate some things about the much-maligned system of publication through law reviews.  The placement process may be the polar opposite of double-blind review, and the absence of peer review sometimes allows shoddy work to appear in prominent places (of course, I doubt peer review fully prevents that from occurring).  But at least when we are asked to participate in a law review's symposium, we don't have to wonder what sort of institution the invitation is coming from.  And when we get publication offers, we can be pretty confident that the people working on our article will be striving to make it better and learning something from the experience, not attempting to gouge money from us or our institutions.

-Dave Owen

Weather, Climate, and Birthday Parties

I took my daughter to a birthday party for one of her school friends last weekend, and I got in a discussion with the birthday girl’s dad about climate change.  It started when the dad said something like “if weathermen can’t even predict the weather tomorrow, how can scientists say anything about climate change.” 

Of course, this wasn’t the first time I had heard such a remark.  But I felt good about the effectiveness of my response, so I thought I’d share it.  It went something like this (please note that I don't claim originality; I'm sure I heard it elsewhere but I don't know where):

"Consider a coin toss.  If I ask you to bet me $1,000 that the toss will come up heads, how confident would you feel about winning the bet?   (Not very.)

Now consider 1,000 coin tosses.  If I ask you to bet me $1,000 that about half of the tosses will come up heads, how confident would you feel about winning the bet?  (Pretty good.)

One coin toss is like predicting the weather.  A thousand coin tosses is like predicting climate. Climate prediction is based on many measurements over many locations over many years."

I doubt I changed his mind about climate change, but I think he appreciated the point.  Also, it felt like the right level of conversation for that social setting.  Perhaps my daughter will still be invited to his daughter’s birthday party next year!

- Lesley McAllister

Water, Whooping Cranes, and the ESA

Three weeks ago, a federal district court in Texas issued an important ESA decision.  The Aransas Project v. Shaw also is a very long decision—124 pages, to be exact—so I’ve been a bit slow to get a blog post up.  Despite its daunting length, the case is important reading for anyone interested in water management or the ESA.  It’s also a rather intriguing case study of the use—both successful and badly botched—of expert testimony in environmental litigation.

The case arises out of water management controversies in Texas.  According to the plaintiffs, the Texas Commission on Environmental Quality and its fellow defendants had taken whooping cranes in violation of section 9 of the Endangered Species Act.  They had done this, the plaintiffs argued, by allowing excessive water withdrawals from the river systems that feed into the Aransas National Wildlife Refuge, which provides vital whooping crane habitat.  The court agreed, enjoined the issuance of new water permits, and ordered the defendants to prepare a habitat conservation plan and seek an incidental take permit.

That’s a very interesting outcome, because successful section 9 actions against water managers don’t seem to be particularly common.  I haven’t done any sort of rigorous survey, but my impression, based on working as a water lawyer and then on my academic research into related ESA questions, is that environmental groups have gained much more leverage through ESA section 7.  Indeed, in the Southeast’s longstanding Apalachicola-Chattahoochee-Flint controversy, similar take claims brought against upstream water managers failed.  See Alabama v. Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006).

So could this case signal the emergence of a new front in the ESA/water allocation wars?  My suspicion is that several factors will make these plaintiffs’ success difficult to replicate.  In no particular order, those factors are:

The extraordinary level of data available to the plaintiffs in this case.  Reading the opinion made me wonder if these whooping cranes are one of the most carefully observed wild animal populations on earth.  As the court describes, scientists have been counting whooping cranes since the 1950s.  Since the early 1980s, scientists—including one of the plaintiffs’ experts—have conducted dozens of monitoring flights every year.  The resulting level of information is exceptional.  Usually population biologists must rely on some combination of observational data (usually limited), proxy indicators like habitat conditions, and computer-based modeling to assess the status of a population.  The resulting uncertainties can limit plaintiffs’ ability to demonstrate causal relationships with enough certainty to support a successful ESA section 9 claim.  With whooping cranes, the circumstances are quite different.

The imbalance of experts.  The plaintiffs had an impressive array of experts on their side.  Here’s the court’s description:

At trial, TAP presented seventeen witnesses, ten of whom were experts, GBRA eight; SARA one: and TCEQ two.   As will be discussed in more detail later, TAP’s experts were world renowned in their respective fields.  Several of TAP’s witnesses hold endowed chairs at prestigious universities, some are MacArthur Fellows, all have published numerous scientific papers in respected journals.  Indeed, one witness, Dr. Ronald Sass, is a shared recipient of the 2007 Nobel Peace Prize for his environmental work.  TAP’s crane experts… have years of study in the field and have devoted their time and energies to the survival of the AWB species.  All of TAP’s experts were accepted as such and the Court finds their testimonies compelling and credible.

The court had less laudatory things to say about the defendants’ experts.  For example:

Dr. Slack did not personally spend any significant amount of time in the field, averaging one day per year over the past fifteen years.  Contrary to the scientific literature, Dr. Slack testified that cranes did not need freshwater because they had functioning supraorbital salt glands which allowed them to secrete excess salt.  However, when questioned further by the Court, Dr. Slack admitted that he had no observational basis for this statement, he had not reviewed literature on cranes and freshwater, and that he “just made it up.” (record citations omitted)

The level of judicial interest.  From the outset, the narrative structure of the opinion (yes, it does have a narrative structure) strongly suggests that someone in the court’s chambers cared very deeply about this case, and probably also about whooping cranes.  Before getting into the procedural history, relevant law, or even the identities of the parties, the opinion spends several pages describing the whooping crane die-off, much like a detective novel beginning with the key murder.  But the real tip-off comes later, in a remarkable passage debunking the work of one of the aforementioned Dr. Slack’s graduate students:

[A key defense report] used a report by Dr. Slack’s graduate student Danielle Greer whose conclusions to the preferred food of whooping cranes was (sic) based on 90 plus hours of video of three crane areas.  The Court watched all of the videos and finds that they were either too blurred to see anything or non-demonstrative of any habit, feeding or otherwise.

So what does this all suggest?  If I’m reading correctly, it shows that when plaintiffs have extraordinarily good monitoring data, an all-star team of experts, poorly prepared experts on the other side, and a judicial chambers where someone—perhaps the judge, more likely a clerk—cares so deeply that she is willing to watch 90 hours of blurry footage of whooping cranes, they can win an ESA section 9 case against upstream water managers.  Absent those circumstances, the challenge might be a bit harder.  That doesn’t mean there won’t be other cases like this.  Conflicts between water withdrawals and the needs of endangered fish and wildlife probably aren’t going away any time soon.  But the case does illustrate the level of scientific and legal work necessary for plaintiffs to prevail.

-Dave Owen

China Environmental Experiences, Post Script: Returning from China to the U.S.

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.

Indeed, when we got home, the first thing we did was ate.  And ate and ate and ate.  Especially fresh fruits and vegetables!  Strawberries.  Raw spinach.  Fresh-squeezed orange juice.  I have had a bowl of grape tomatoes on my kitchen counter every day since we got home, replenished like an open candy bowl.  Pesto, chevre, basil… flavors that have never been so missed.  Whole grains.  Sourdough.  Bread baked in my own oven, after a year in which nobody we knew even had one.  Tollhouse cookies, donuts...  my son has eaten a bagel every morning for months and they have not begun to lose their allure.  We knew that our Chinese friends return from the U.S. with exactly the same desperation for their own food culture, but that didn’t alter the joy of our own reunion.

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.

 

--Erin Ryan

In Case You Missed It: Week of 3/17 to 3/23

Sally Jewell's nomination to become Interior Secretary cleared the Senate Energy and Natural Resources Committee.

SCOTUS handed down Decker v. Northwest Environmental Defense Center (U.S. No. 11-338), reversing the 9th Circuit in upholding EPA's interpretation that channelilzed stormwater runoff from logging is not a discharge triggering the need to obtain a CWA permit (opinion here).

SCOTUS granted cert in US Forest Service v. Pacific River Council, U.S. No. 12-623.

REMINDER: Call for Proposals, USD Climate & Energy Law Symposium

"California in the Spotlight: Successes and Challenges in Climate Change Law"

Proposals due:  Monday, March 25, 2013

On Friday, November 8, 2013, the University of San Diego School of Law will host its Fifth Annual Climate & Energy Law Symposium.  With this Call for Proposals, you are invited to submit the title and abstract of an article that you would be able to present at the Symposium and publish in the fifth volume of the San Diego Journal of Climate & Energy Law.  If your proposal is selected, all your expenses to attend the Symposium would be paid, and your completed article would be due to the Journal’s editors by Monday, December 16, 2013. The agendas and webcasts of past symposia are available here.

The theme of our 2013 Climate & Energy Law Symposium is “California in the Spotlight: Successes and Challenges in Climate Change Law.”  Among U.S. states, California has pursued the most comprehensive and ambitious approach to reducing greenhouse gas emissions.  California’s approach is multi-sectoral, with laws designed to transform not just electricity generation but also transportation, industry, and land use.  Also, California has embraced regulatory innovation through a robust combination of market and non-market based regulatory instruments.

At the University of San Diego’s Fifth Annual Climate & Energy Law Symposium, academic and policy experts will analyze and assess three core aspects of California’s approach to climate change mitigation.  First, California has implemented an economy-wide cap-and-trade program.  How well does cap and trade work?  What are its weaknesses and strengths in comparison to alternative emissions reduction policies?  Should it be a regulatory instrument of choice for other states and countries?  Second, California is aggressively pursuing emissions reductions in the transportation sector.  What is the outlook for zero emission vehicles and the policies to promote them?  Should the state’s low-carbon fuel standard survive judicial scrutiny?  What prospects remain for a national low-carbon fuel standard?  Third, California remains a leader in promoting low-carbon electricity, particularly solar electricity.  How have the state’s utilities complied with the Renewable Portfolio Standard requiring that they source 33% of their electricity from renewable sources by 2020?  What are the arguments for and against national policies that mandate such goals?  What other state, national, and international policies should be implemented to promote low-carbon electricity?

All article proposals related to these broad issues in climate change mitigation are welcome.  It is not necessary for an article to focus specifically on California law and policy.  If you are interested in participating, please submit the following to Joshua Dennis, editor-in-chief of the San Diego Journal of Climate & Energy Law, at jdennis@sandiego.edu:

(1)    The proposed title of your article and a one- to three-paragraph abstract;

(2)    A link to or copy of your CV; and

(3)    Confirmation that you would be available to attend the Symposium on Friday, November 8, 2013, and that you can commit to submitting a complete draft of your associated article for publication to the San Diego Journal of Climate & Energy Law by Monday, December 16, 2013.

Proposals should be submitted by Monday, March 25, 2013.  We look forward to hearing from you!

The University of San Diego Climate & Energy Law Symposium is co-hosted by the Energy Policy Initiatives Center (EPIC) and the San Diego Journal of Climate & Energy Law.  For information about past Symposia, please visit:

First Annual Climate & Energy Law Symposium (2009): Federal Preemption or State Prerogative: California in the Face of National Climate Policy

Second Annual Climate & Energy Law Symposium (2010): Next-Generation Regulation: Instrument Choice in Climate Law

Third Annual Climate & Energy Law Symposium (2011): Advancing a Clean Energy Future

Fourth Annual Climate & Energy Law Symposium (2012): Law in a Distributed Energy Future

 

- Lesley McAllister

In Case You Missed it: Week of March 11-17

- Many new species now have protection under the Convention on International Trade in Endangered Species.

- A solar industry trade group reported that U.S. sales were up 76% in 2012.

- According to EPA, the fuel economy of the U.S motor vehicle fleet increased by 1.4 mpg in 2012.

- Lake Erie, once a poster child for environmental restoration, is in trouble again.  Great story here.

- A federal district court in Texas held (link goes to a long PDF document) that water managers had illegally taken whooping cranes by allowing depletion of the freshwater flows that sustained the cranes' habitat.

In Case You Missed It - Week of March 3 to 9

The U.S. State Department released a Draft Supplemental Environmental Impact Statement for Keystone XL (full text available here). The draft finds that  the approval or denial of KXL is unlikely to significantly impact the rate of development of the oil sands or the continued demand for heavy crude oil in the United States. Concerned environmentalists fear this is a sign that the White House will approve KXL.

A University of California study predicts that climate change will make commercial shipping possible from North America to Russia or Asia over the North Pole by the middle of the century (the published scientific article is here). 

President Obama nominated Gina McCarthy to lead EPA.  The nomination was generally well-received by the environmental community. See, for example, this perspective by Frances Beineke of the Natural Resources Defense Council. 

A new study published in Science extends the "hockey stick" graph of temperature change back an additional 9,000 years (from the 2,000 years in the original study by Mann.)  As the new study's author states, the data show that "temperatures increased in the last hundred years as much as they had cooled in the last six or seven thousand." In short, the rate of warming in the past 100 years is unprecendented in the previous 11,000. 

The Casitas Throwback?

Last week, the Federal Circuit released another major decision in Casitas Municipal Water District v. United States.  The decision brings an apparent end to a long legal saga.  Broadly speaking, the litigation addressed the complex three-way intersection between the Endangered Species Act, the 5th Amendment of the United States Constitution, and water law.  In this latest round, traditional water law took center stage.  They key question was whether Casitas actually held property rights in the water that was diverted away from its intake canal (the court's answer was no).  Answering that question compelled the Court of Claims and then, on appeal, the Federal Circuit to consider the basic elements of an appropriative right.

I think that makes the case something of a throwback.  Water law casebooks devote many of their pages to explaining the basic parameters of appropriative rights, and years ago, that may well have been a recurring litigation question.  But in my four years as a practicing water lawyer, those kinds of questions hardly ever came up.  My firm’s water cases raised issues under the Endangered Species Act, the Federal Power Act, takings doctrine, and, with particular frequency, the California Environmental Quality Act (among other laws).  And, of course, we spent many hours on civil procedure.  But I hardly ever worked on cases involving the nuances of prior appropriation doctrine, and therefore spent little time with the issues that form the traditional core of a water law curriculum.   Based on my narrow experience, at least, the Casitas decision appears to be an intriguing anomaly.

That does not mean those issues are irrelevant.  In California, the relatively junior status of some key institutional players—Metropolitan Water District and Westlands Water District, for example—has enormous implications for their political and legal strategies.  Priority, in other words, still has a foundational influence on western water management.  But that doesn’t mean it’s a key litigation issue.  And if it isn’t, that raises some questions about the ways we now teach water law.

But were my experiences representative of modern water law practice?  Although I’ve long been curious, I really don’t know the answer to that question.  So if any of our readers are practicing water lawyers, or know practicing water lawyers well, I’d love to hear what they’re spending most of their time doing these days.  Do the traditional rules of prior appropriation—or, in the east, riparian doctrine—still form a key component of water law practice?  Or have you found, as I found, the primary issues to arise from the application of statutory environmental laws to water use?

-Dave Owen

Why don’t we Care More about our Children?

In all President Obama’s recent pronouncements about climate change, he has couched his call for action in a concern for future generations. 

“But for the sake of our children and our future, we must do more to combat climate change.”
- State of the Union Address (February 12, 2013)

“We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”
-  Inaugural Address (January 21, 2013)

"We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet."
- Acceptance speech (November 7, 2013)

And, Obama’s not the only public figure saying it. In January, World Bank President Jim Yong Kim wrote in a Washington Post op-ed that “If there is no action soon, the future will become bleak.”  

So why doesn’t this argument sway more Americans to favor swift and strong action?  Why aren’t all of us parents and grandparents demanding it?  My kids will be in their 40s in 2050, and their kids would be very likely to live beyond 2100 (but that's less clear in a world devastated by climate change).  I would expect that a lot more Americans my age and older would start to see climate change as an issue that really affects us personally. Why don’t we?  And what can be done to change this apparent lack of consideration for our own children and grandchildren?

- Lesley McAllister

In Case You Missed It - Week of Feb. 24 to Mar. 2

* The Energy Information Administration reported that power plant-produced NOx and SO2 emissions are lower than in two decades

* The First Circuit rejected Massachusetts' challenge to the relicensing of the Pilgrim nuclear power station

* A new book is out on the intractable problem of high-level nuclear waste disposal

* A group of business executives released their plan for a new U.S. energy future

* Climate change is threatening the wolverine

* The New York Times ended its Green blog

China's Carbon Tax: What does it mean for Kyoto Protocol's Emissions Trading System?

According latest newsreports and blogs, China is considering imposing a carbon tax. A Washington Post blog provides an overview of the tax and its implications here. If China succeeds in imposing the carbon tax, it will be an important first step to achieve emissions reduction in one of the world's largest emitting nations. The question is what the implication of this action will be for the successor treaty to the Kyoto Protocol?

President Obama in his State of the Union address appeared to lean towards a cap and trade regime, given his reference to the McCain-Lieberman Bill. This preference means that the United States government may pursue a cap and trade option over a carbon tax. Whether one is better than the other is an ongoing debate.

The critical issue is how, if at all, the difference in the choice pursued by these countries will affect a future international climate treaty. On a positive note, steps taken by the two major emitters and economic powers could lead to much needed consensus on international action. However, it could also mean that the two major emitters may differ on the future of the Kyoto Protocol emissions trading system.

On the one hand, a change to the central architecture of the Kyoto Protocol could spell further disagreement and probably the disintergration of the Kyoto Protocol. On the other hand, it could usher a welcome change to the architecture of the Kyoto Protocol, which has presented several challenges since its inception. It may perhaps help begin a dialogue for an alternative and much more flexible framework for achieving emissions reduction.

--Deepa

Call for Proposals: University of San Diego Climate & Energy Law Symposium

"California in the Spotlight: Successes and Challenges in Climate Change Law"

Proposals due:  Monday, March 25, 2013 

On Friday, November 8, 2013, the University of San Diego School of Law will host its Fifth Annual Climate & Energy Law Symposium.  With this Call for Proposals, you are invited to submit the title and abstract of an article that you would be able to present at the Symposium and publish in the fifth volume of the San Diego Journal of Climate & Energy Law.  If your proposal is selected, all your expenses to attend the Symposium would be paid, and your completed article would be due to the Journal’s editors by Monday, December 16, 2013. The agendas and webcasts of past symposia are available here.

The theme of our 2013 Climate & Energy Law Symposium is “California in the Spotlight: Successes and Challenges in Climate Change Law.”  Among U.S. states, California has pursued the most comprehensive and ambitious approach to reducing greenhouse gas emissions.  California’s approach is multi-sectoral, with laws designed to transform not just electricity generation but also transportation, industry, and land use.  Also, California has embraced regulatory innovation through a robust combination of market and non-market based regulatory instruments.

At the University of San Diego’s Fifth Annual Climate & Energy Law Symposium, academic and policy experts will analyze and assess three core aspects of California’s approach to climate change mitigation.  First, California has implemented an economy-wide cap-and-trade program.  How well does cap and trade work?  What are its weaknesses and strengths in comparison to alternative emissions reduction policies?  Should it be a regulatory instrument of choice for other states and countries?  Second, California is aggressively pursuing emissions reductions in the transportation sector.  What is the outlook for zero emission vehicles and the policies to promote them?  Should the state’s low-carbon fuel standard survive judicial scrutiny?  What prospects remain for a national low-carbon fuel standard?  Third, California remains a leader in promoting low-carbon electricity, particularly solar electricity.  How have the state’s utilities complied with the Renewable Portfolio Standard requiring that they source 33% of their electricity from renewable sources by 2020?  What are the arguments for and against national policies that mandate such goals?  What other state, national, and international policies should be implemented to promote low-carbon electricity?

All article proposals related to these broad issues in climate change mitigation are welcome.  It is not necessary for an article to focus specifically on California law and policy.  If you are interested in participating, please submit the following to Joshua Dennis, editor-in-chief of the San Diego Journal of Climate & Energy Law, at jdennis@sandiego.edu:

(1)    The proposed title of your article and a one- to three-paragraph abstract;

(2)    A link to or copy of your CV; and 

(3)    Confirmation that you would be available to attend the Symposium on Friday, November 8, 2013, and that you can commit to submitting a complete draft of your associated article for publication to the San Diego Journal of Climate & Energy Law by Monday, December 16, 2013.

Proposals should be submitted by Monday, March 25, 2013.  We look forward to hearing from you!

The University of San Diego Climate & Energy Law Symposium is co-hosted by the Energy Policy Initiatives Center (EPIC) and the San Diego Journal of Climate & Energy Law.  For information about past Symposia, please visit:

First Annual Climate & Energy Law Symposium (2009): Federal Preemption or State Prerogative: California in the Face of National Climate Policy

Second Annual Climate & Energy Law Symposium (2010): Next-Generation Regulation: Instrument Choice in Climate Law

Third Annual Climate & Energy Law Symposium (2011): Advancing a Clean Energy Future

Fourth Annual Climate & Energy Law Symposium (2012): Law in a Distributed Energy Future

 

- Lesley McAllister

Perspectives on Crisis, Resilience and the Reformation of the International Law on Sustainable Development

Sustainability is a concept or goal to guide decision making at the intersection among the social and economic components of the human system and the environment.

Unlike sustainability, resilience is an inherent property of a system.  It is the degree to which a system maintains the same structure and function in the face of change or a perturbation.

Unlike sustainability, resilience as a general concept is value neutral.  A system may be highly resilient either because it is quite adaptable (latitude) or quite resistant to change (resistance). 

Thus, an overgrazed field taken over by invasive weeds may be resistant to returning to its original state when livestock are removed – it is therefore resilient but not necessarily something we label as good. 

A brutal military dictatorship may be highly resistant to change -- it is therefore resilient but not necessarily something we label as good. 

Thus it is common to talk about resilience in the context of societal goals such as sustainability or the maintenance of ecosystem function.  What resilience brings to the discussion is a deeper understanding of how to adjust our actions in a complex system to achieve these goals.

In my former life as a scientist, it was always what happens at the boundaries of two systems that interested me – in science it was the boundary between physical systems, now it is the boundary between schools of thought – it is what led me to interdisciplinary research.

In physical chemistry I studied the laws of thermodynamics applicable to ideal systems and I loved their simplicity and predictive capability.  But as a researcher in geochemistry, I studied a system in which the temperatures had been warm enough to cause mineral composition to change when seawater and rock interacted, but too slowly to reach equilibrium.  You might predict that the results would plot on a continuum from the original state to the new equilibrium state.  You would be wrong.  The same discrete intermediate stage occurred over and over again.

We see this in other complex systems.  Consider a river – on the one hand you can study and model fluid flow, on the other hand you can describe the properties of the river bed.  But put them together and you have a boundary condition.  The entire behavior of the new system is defined by how the water and stream bed interact.  And that interaction is not random chaos.  Rivers persist in certain forms that are empirically predictable.

Understand quantum physics and thermodynamics and you will never predict life.  Evolution is our current way of understanding the change of one life form to another, yet despite our search for a continuum in the fossil record, there appear to be discrete steps.  One aspect of resilience scholarship is the recognition that systems are self-organizing.  Thus a system that crosses a threshold, will reorganize in another discrete state.  It may or may not be a state that we value.

The danger of goals like sustainability without integration with a concept like resilience that relates to both the properties and processes within the relevant system is that the failure to account for complexity may lead to system collapse.  For example: Consider what are referred to as the 4 R’s of sustainability: re-duce, re-use, re-cycle, -re-claim.  While they sound good, optimization of resource exploitation through ever increasing efficiency can move the system precariously close to a threshold.  Thus a social-ecological system relying on a water source that is developed to the maximum level of efficiency is highly susceptible to collapse in the face of disaster and crisis such as increasing prolonged drought resulting from climate change.

My own work is premised on the hypothesis that by consideration of governance through the lens of resilience we can define certain criteria that facilitate adaptability and legitimacy and are transferrable to multiple systems at multiple scales.  I will briefly describe three projects:

1.         On the problem of disaster and crisis or simply, change:  we are looking at a simple process of mapping the scale at which particular ecosystem services function in comparison to scale of governance in the context of river basins, then identifying potential thresholds that may be reached due to external environmental and social drivers such as climate change, nutrient cycles, population, the economy, and institutions.  Preliminary work shows at least 2 outcomes:

• When we replace a service provided by the ecosystem with an engineered service, we tend to move up a scale in both the governance and the physical system.  This is because we tend to engineer complexity out of the system – replacing the function of the floodplain with dams and levees for example.
• This reduces our ability to adapt in the face of external drivers

2.         On the problem of – just because science says it is the right thing to do, does not mean society will do it. For this I have been looking at the work of scholars more adept than I on the concept of legitimacy which considers: how persuasive are the decisions made by our leaders – are their actions justified (normative) and do we perceive them as justified (popular).  I use legitimacy specifically in the context of the actions of administrative agencies.  One of the outcomes is that by looking at decision-making through the lens of resilience, process matters – it is not enough to use good science.  My work looks at the use of local knowledge and capacity building to facilitate local deliberation and innovation; the use of negotiated time frames for adjustment to allow stability while enhancing flexibility; the use of goal setting and monitoring to enhance accountability; and the use of networks to bridge between scales and entities with fragmented jurisdictional authority.

3.         Finally, a project in the funding proposal stage would bring together legal and resilience scholars, political scientists and ecologists to integrate the work from the first two projects into a set of criteria for adaptive governance to achieve social-ecological resilience.

Conclusion:

I am enough of a student of the history of science that I don’t believe resilience is the end point of that understanding, but it gives us a way to better align our behavior in the social system with how changes are occurring in the ecological system and to begin to make at least empirical sense out of the feedbacks between the two – generally the precursor to great leaps in thought.  All we are doing then is setting things up for the next generation to make that leap to the theories to describe the complex behavior at the boundary between social and ecological systems.

Comments of Professor Barbara Cosens from a panel on Crisis, Resilience and the Reformation of the International Law on Sustainable Development at the Canadian Council on International Law Conference, Ottawa, Nov. 2012

The Legacy of Professor Ronald Dworkin and Lessons for Climate Change

Professor Dworkin, Professor at NYU Law School and Professor Emeritus at University College London, passed away on February 15, 2013. The legal world has lost a giant, but his work endures. 

I was first introduced to Professor Dworkin's work as part of my mandatory jurisprudence course, while studying law at the National Law School of India University. My professor, an avid follower of Professor H.L.A.Hart, nevertheless introduced us to Professor Dworkin's work, leaving us to be judges of which philosophy was more persuasive. Honestly, it was not a task that many of us were prepared to undertake at that point.

However, over the years, I have come to appreciate the short introduction to legal philosophy and to the works of keen jurists such as Professor Dworkin. While far from fully understanding the sophistication of all his arguments, his core philosophy that law and morality are reconcilable resonate strongly now.

While thinking about his work, I reverted back to one of the first articles of Professor Dworkin that I attempted to read in a thick hardbound copy of the Harvard Law Review years back--Hard Cases (88 Harv. L. Rev. 1057 (1975)). While the Westlaw version is less thicker and more accessible, the contents remain breathtakingly broad-ranging and complex. Nevertheless, as I read through it, I am reminded of one "hard case" that is out there pending adjudication--the matter of climate torts.

I would be lying if I said that by reading Professor Dworkin's essay, I have come up with a philosophical framework for addressing climate torts. However, it may be an interesting project to go through the essay in search of a meaningful framework by which we can think through the hard case of climate change. For now, let me say that I have found one starting point in this sentence explaining his core thesis in the essay:

"I propose,..., the thesis that judicial decisions in civil cases, even in hard cases..., characteristically are and should be generated by principle not policy." (p. 1060).

The question then is, when we are dealing with hard civil cases such as climate change, where a decision will have global impacts, what is the principle that judges should pursue? Perhaps, I will have some thoughts after I have carefully read Professor Dworkin's essay again.

--Deepa--

 

 

 



Perpetual Conservation Easements: What Have We Learned and Where Should We Go From Here?

Today, Friday, February 15, 2013, the University of Utah S.J. Quinney College of Law is hosting its third annual academic conference.  The topic is Perpetual Conservation Easements: What Have We Learned and Where Should We Go From Here?.  Organized by Prof. Nancy McLaughlin, the event promises a fascinating deep dive into a complex and interesting topic.

If you can't attend in Salt Lake City, watch live via the internet.

The agenda (all times MST):

12:00 p.m.

Welcome

Robert B. Keiter, University of Utah S.J. Quinney College of Law

Introductory Remarks

Nancy A. McLaughlin, Robert W. Swenson Professor of Law,
University of Utah S.J. Quinney College of Law

12:20 p.m.

Federal Tax Incentives

• History - Theodore S. Sims, Professor of Law, Boston University School of Law; Formerly with the Treasury Department
• IRS Response to Abuses - Karin Gross, Supervisory Attorney, IRS Office of Chief Counsel
• Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation

1:20 p.m.

State Enabling Statutes

• History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee
• Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property
• Reforms - Jeffrey Pidot, Former Chief of the Natural Resources Division of the Maine Attorney General’s Office (retired); Originator of Maine’s Enabling Statute Reforms

2:20 p.m. Break

2:45 - 3:45 p.m.

Charity Oversight

• Cases and Controversies - Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
• History - Marion R. Fremont-Smith, Senior Research Fellow, Hauser Center for Nonprofit Organizations, Harvard University
• Limits of Self-Regulation - Melanie B. Leslie, Professor of Law, Cardozo Law School

3:45 - 4:45 p.m.

Working With State Attorney General Offices

• Overview of Attorney General’s Role in Charitable Sector - Mark A. Pacella, Chief Deputy Attorney General, Charitable Trusts and Organizations Section, Pennsylvania Office of the Attorney General
• Working With the Attorney General’s Office in New Hampshire - Terry M. Knowles, Assistant Director, Charitable Trusts Unit, Department of Attorney General of New Hampshire
• Working With the Attorney General’s Office in California - Darla Guenzler, Executive Director, California Council of Land Trusts

4:45 - 5:00 p.m.

Concluding Remarks­­—Taking The Long View

Wendy Fisher, Executive Director, Utah Open Lands Conservation Association

-Lincoln Davies

Taking Groundwater?

Almost exactly one year ago, the Texas Supreme Court issued a decision that ranks—at least by the modest standards of groundwater litigation—as a blockbuster.   In Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), the court held that landowners own property rights in groundwater beneath their land, even before they pump that groundwater, and that restrictions on groundwater use could create a taking.  This caused a stir among water lawyers.  The application of takings doctrine to surface water rights was already a hot topic, particularly following the federal government’s defeat in Tulare Lake Basin Water Storage Authority v. United States, 49 Fed. Cl. 313 (2001).  Day provides a reminder that the water/takings battle also has a growing subterranean front.

The Day decision inspired me to see what other courts have had to say about takings claims involving groundwater.   The answer, it turns out, is quite a lot, and the cases hold lessons for larger debates about water rights and takings.  Those cases and lessons, some ideas for the future evolution of groundwater/takings law, and the reasons why we should care all are summarized in greater detail here.  The article is still a draft, and I welcome reader comments.

-Dave Owen

18th Annual Stegner Center Symposium - Religion, Faith, and the Environment

The University of Utah law school's Stegner Center for Land, Resources and the Environment is proud to announce its 18th Annual Symposium, which this year will focus on the topic Religion, Faith, and the Environment.

Details, the conference agenda, and registration are available here.

-Lincoln Davies

Utah Law Review Annual Special Environmental, Natural Resources, and Energy Law Issue

The Utah Law Review--the University of Utah S.J. Quinney College of Law's flagship publication--has announced that it will begin publishing an annual special issue on environmental, natural resources, and energy law.  The issue will publish on a schedule opposite the Colorado Law Review's special natural resources law issue.  The announcement and details are below:

The Utah Law Review is excited to announce the inaugural Environmental & Natural Resources Issue, to be published next winter, Utah Law Review, Vol. 2013, No. 6 (expected in print December 2013).

This new special winter issue, Issue 6 of each year’s Utah Law Review, replaces the Utah Environmental Law Review specialty journal.  This robust issue will feature 4 to 6 scholarly works solicited through article selection, student works, and dynamic symposium pieces published in coordination with the Wallace Stegner Center for Land, Resources and the Environment. Published works will focus on significant issues in natural resources, energy, and environmental law and policy.   

We look forward to working with scholars to publish pieces that illuminate the challenges and opportunities in this evolving and critically important field.  While we will be selecting a majority of our articles through the spring article submission process, we also plan to reserve space for articles submitted in the fall submission season.

For more information, please contact:

Stephen Dent
Editor-in-Chief
Utah Law Review
Stephen.Dent@law.utah.edu

Erin St. John
Environmental Editor
Utah Law Review
Erin.StJohn@law.utah.edu

-Lincoln Davies

Univ. of Washington Young Environmental Law Scholars Annual Workshop

The University of Washington law school has issued a call for papers for its annual Young Environmental Law Scholars Workshop, a fantastically helpful and well-organized event.  Details are below:

Call for Papers
UW Young Environmental Law Scholars Annual Workshop
University of Washington School of Law
Seattle, Washington
July 10-12, 2013

The University of Washington is pleased to announce the 2nd Annual UW Young Environmental Law Scholars Workshop. This collegial two-day workshop features discussion of works-in-progress by ten early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows.   We welcome submissions from the broad fields of environmental, natural resources, and energy law.  

Participating junior scholars will be asked to submit an unpublished work-in-progress one month before the workshop. Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary. At the workshop, each paper will receive an hour of discussion: a brief presentation by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group. The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.

The senior scholars participating in this year’s workshop are:

• Robert T. Anderson - Director, Native American Law Center, University of Washington
• William H. Rodgers - Stimson Bullitt Professor of Environmental Law, University of Washington
• Mark Squillace - Director, Natural Resources Law Center, University of Colorado
• Wendy E. Wagner - Joe A. Worsham Centennial Professor, University of Texas
• Sandra B. Zellmer - Robert B. Daugherty Professor of Law, University of Nebraska

To apply, please submit a cover letter, an abstract of no more than 500 words, and a C.V. to toddw2@uw.edu by March 1, 2013.

All meals will be included. Participants will be responsible for their travel and lodging costs.

-Lincoln Davies