Wednesday, March 26, 2014
PACE UNIVERSITY SCHOOL OF LAW
2014 LLOYD K. GARRISON LECTURE
March 26, 2014
David Sive (1922-2014) and Joseph Sax (1936-2014)
In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2nd 608 (2d Cir., 1965). Known as the “Storm King” case, this ruling inaugurated what we today call environmental law. Two individuals above all others, guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives are intertwined.
Pace’s faculty insisted that David Sive give the inaugural Garrison lecture. David did so, but insisted that his friend and fellow legal pioneer for the stewardship of nature, Prof. Joseph Sax, deliver the second lecture in the series. Lloyd had passed away four years before. It was timely to commemorate Lloyd’s remarkable civic career and his seminal contribution to the birth of contemporary environmental law in the battle to safeguard “Storm King” mountain. A descendent of abolitionist William Lloyd Garrison, Lloyd was a pre-eminent civil liberties attorney, former Dean of Wisconsin Law School, and a leader of the Bar in New York, who had been called to service on many governing boards for federal agencies under three presidents. I came to know Lloyd before his passing, conferring with him on historic preservation law matters.
When the Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands had inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn engendered the birth of America’s conservation movement of the late 19th century. The Hudson was also instrumental to the birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces. Here above Storm King George Washington assembled soldiers from across the freed colonies for their final encampment before being demobilized. The Army’s West Point Military Academy overlooks the River and Storm King.
Con Ed had assembled the political and legal power to secure approvals for its plan. A small coalition of citizens, led by Francis Reese and others, persuaded Lloyd to represent their cause: preserve Storm King. He served as legal counsel to the Scenic Hudson Preservation Conference. With his able associate, Albert K. Butzel, who delivered a Garrison lecture in 2010, Lloyd Garrison won a landmark decision of the US Court of Appeals granting the citizens standing, reversing the FPC’s grant of a license to Con Ed., and determining that aesthetics, history and nature conservation had equal standing to economic interest, and must be considered before the FPC could lawfully act.
Among those who joined the Scenic Hudson Preservation Conference’s legal battle was the Atlantic Chapter of the Sierra Club. David Sive and Alfred Forsythe had formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who felt the Club belonged there, and worried the Club would be stretched too thing. Dave chaired the Chapter. In those days, I recall how its Conservation Committee debated issues from Maine to Florida. The Chapter’s center was with Sive in New York, campaigning for example to save Olana, the Hudson painter Frederick Church’s home and studio. Having the prestige of the Sierra Club meant a lot to the Storm King cause. Sive represented the Sierra Club in its intervention in the Storm King case.
While litigation over Storm King battled on, David Sive also agreed to represent a similar grassroots community movement, the Citizens Committee for the Hudson Valley v. Volpe. Federal Transportation Secretary John Volpe had approved siting a super- highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, located there to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the Tappan Zee Bridge. Without the benefit of any environmental statutes, which would only be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, Sive prevailed against the State and federal defendants. Upheld on appeal, Congress also ended up backing the citizens. Pace’s Dean Emeritus, then Congressman Richard L. Ottinger successfully blocked a bill intended to overturn the court decisions. Sive had won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved this lovely part of the Tappan Zee, Kingsland Point Park, beaches and marinas, a rare location where a person can reach the River’s banks without being barred by the NY Central’s railroad tracks. Had Joseph Sax’s public trust scholarship been published a decade earlier, Sive might have relied on that legal doctrine as well.
[Parenthetically, I served as Dave Sive’s law clerk in 1969 on the appeal of the Hudson River Expressway case, and every summer since 1972 I have swum in the Hudson where the highway would have been built. My daughters learned to swim there, and my grandchildren and I swim there still.]
Public interest litigation to safeguard the environment was born in these cases. Citizen outrage about pollution and degradation of nature was then wide-spread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive and Joseph Sax were prominent among participants. Their essential conclusion was that “environmental law” needed to exist. Like Sive, Sax , while a young professor at the University of Colorado, had helped the Sierra Club opposing development of the Colorado River, and had become involved in a legal campaign, launched by Victor Yannaconne, to ban DDT in the wake of Rachael Carson’s Silent Spring. At Airlie House, I was privileged to listen to Sive and Sax debate strategies about how to expand beyond the scope of administrative legal remedies to forge this new field of “environmental” law. Participants took heart from the civil rights movement, and argued that if the NAACP Legal Defense Fund could engage courts to remake the law against all odds, so could those who defended the environment. They left that conference motivated to act.
On December 1, 1970, Congress enacted the National Environmental Policy Act, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). In Michigan, Joe Sax wrote and saw enacted the Michigan Environmental Act of 1970, with provisions for citizen access to justice to enforce environmental rights. In the wake of both NEPA and his Michigan legislation, Joe Sax articulated and published doctrinal and civic foundations to support public interest litigation and define the environmental duties government owed its citizens. His landmark book, defending the Environment: A Strategy for Citizen Action appeared in 1971. The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA. Dave Sive and Joe Sax emerged as the environmental leaders on this Committee, which was chaired by US Attorney Whitney North Seymour (SDNY). CEQ issued its NEPA ”guidelines” on recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment. Nicholas Yost later codified the case law for CEQ in 40 CFR Part 1500.
Dave Sive, withhis law firm, Sive Paget & Riesel, went on to represent citizens in a number of NEPA cases, winning rulings of first impression. Sive was a founder of Natural Resources Defense Council (NRDC), which became the pre-eminent champion of public environmental rights before the courts. Sive also led the establishment of the leading environmental lobby group in Albany, now known as Environmental Advocates, and campaigned for stronger State legislation. To continue the Airlie House conference precedent, Sive institutionalized the professional study of environmental law as a discipline through creation of the Environmental Law Institute (ELI). With ELI and ALI-ABA, he launched nation-wide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. On becoming a Professor a Pace, Dave helped launch its Doctor of Juridical Sciences degree, mentoring Dr. Robert Goldstein in his thesis; Robert is now a Professor in the Law Department at West Point. He vetted Prof. Robert F. Kennedy Jr.’s exposé of mismanagement in the NYC Catskill Watershed; Bobby Kennedy’s work launched the much-remarked regime of ecosystem services between New York City and Catskill communities. Sive, honored as a Member of the IUCN Commission on Environmental Law, was celebrated by its long-time Chairman, Wolfgang E. Burhenne, as being a legend in his time.
David Sive epitomized the best of what makes law a learned profession. He was a true role model. Michael J. Walker, director of the US EPA’s National Enforcement Training Institute, wrote last March 24th of his hope that each of the 54 new law clerks being trained at EPA this week ”will continue the work that Mr. Sive began 50 years ago. We will begin with a ‘thank you’ to a leader and patriarch in the environmental movement: David Sive.”
Joe Sax went on to become America’s pre-eminent professor of environmental law. In that fertile year, 1970, he also had published “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (68 Mich. L. Rev. 47). His teaching and research in water law brought him perceptions about the public trust doctrine hidden to others. His article inspired a generation of law professors and public interest litigators who engaged the courts to protect public trust interests, especially access to public shores along rivers like the Hudson. The idea of legally protected pubic rights , which citizens can defend, is fundamental to environmental law. Sax’s work inspired Bob Boyle and other founders of the Hudson Riverkeeper, and in turn the world-wide Waterkeeper movement. Pace’s Environmental Litigation Clinic recently won a major public trust case in New York State courts. Law schools nation-wide are indebted to Joe Sax for his inspired scholarship and vision. In his prolific career, Joe’s many further books and articles engaged the minds of environmental law professors across America. Internationally, he was a laureate of the Elizabeth Haub Prize in Environmental Law, and lectured to law professors of the IUCN Academy of Environmental Law its annual Colloquium in Sydney Australia, in 2004. His ideas won a global audience. When India’s Supreme Court recognized the public trust doctrine in that nation, the research of Prof. Joseph Sax was evident.
Looking back at his four decades of cultivating environmental law in 2007, Sax reflected on the duty of the state to protect the people’s common heritage: “Only when this precept is expanded into a general principle of our domestic law governing all out natural resources will we be able to say we have truly implanted environmental jurisprudence into our legal system.” When Joe passed, the law professors’ Internet list serve buzzed with praise for all his contributions. He mentored a generation of law professors. Another Garrison lecturer, Prof. Oliver Houck, observed : “In late l969 I heard Joe Sax and David Sive speak in DC. Like watching dawn break. I've never looked back ...”
David and Joe were both humble and self-effacing men. They would have been pleased to be celebrated together, each basking in the earned accolades of the other. That was their demeanor when they were here together with the first 10 Garrison laureates, who were assembled at Pace in 2005 by Prof. Robert Goldstein. John Cruden, President of ELI, last March 20th observed: “I have now had the opportunity, in three separate events, to pay homage to Joe and David. It is a rare audience that people do not know one or both, and everyone has heard of them. Each time I speak about them, stories follow. Joe was an inspiration for me, David a mentor. Their legacy is golden, but thinking about them both challenges me to do more.”
The ripples from their professional work have spread far and wide. It is fair to observe that the reforms that Sive and Sax engendered in time produced Principle 10 of the Declaration of Rio de Janeiro on Environment and Development, adopted by the UN 1992 Earth Summit. This principle embodies many of the reforms that they urged in the 1970s and beyond: rights of access to environmental information, to pubic participation in environmental decision-making and to access to the courts. These are today recognized as global norms. The combined legacy of their lives is global.
We are honored that David’s wife, Mary Sive, a great outdoors woman, and his daughter Helen, are with us here today. In his last years, when he was able, Dave enjoyed attending the Garrison lectures. On behalf of us all, may I thank the Pace Law Library and Environmental Law Program staff, especially Leslie Crincoli and Prof. Lin Harmon, for the commemorative exhibits that accompany this 2014 lecture, honoring Joe and Dave. David Sive would have been pleased to have been here today to welcome Prof. J.B. Ruhl to deliver the 2014 Garrison lecture. J.B. is a pre-eminent environmental law scholar, and is very much the heir to Joe Sax’s scholarly legacy of innovation. This year especially, the spirit of Sive and Sax infuses the Garrison Lecture.
Nicholas A. Robinson
March 26, 2014
 See the 1971 CEQ Annual Report, Appendix, Membership of Legal Advisory Committee, at p. 355.
 Principle 10 of the Declaration of Rio de Janeiro on Environment and Development provides: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the enviro9nment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” This norm today is embodied in national statutes and constitutions around the world, as well as in a number of treaties.
Thursday, March 20, 2014
Over the past few years, I’ve spent a fair amount of time thinking about water rights and the takings clause. One outcome of that work is an article, which just came out in the Washington University Law Review, on takings and groundwater use regulation.
Another output is a case study designed for law school teaching. It draws upon an ongoing conflict between the Bragg family and the Edwards Aquifer Authority. That conflict already produced several published decisions—with more potentially on the way—and a fair bit of commentary (examples here and here). Its facts also make it a good fit for a classroom.
The very quick summary is that the Braggs planted one pecan orchard, and bought another, well before the modern regulatory regime for the Edwards Aquifer came into existence (but after conflict over that aquifer had begun to brew). They planned to use Edwards Aquifer water to irrigate their orchard, but not immediately. By the time their trees had grown large enough to need the water, a different and much more extensive regulatory regime was in place, and it favored existing users. So the Braggs sued, alleging a taking. Their claims raise a whole host of interesting issues, including, among others, what analytical framework is appropriate for a water rights/takings case, what counts as a reasonable investment-backed expectation, how diminution in value should be measured, what forms the relevant unit of property in a water rights/takings case, and what basic values takings doctrine should serve.
My case study provides students with a summary of the conflict and a few documents from the record (there are many more that could be included, but I elected to keep it simple), and it asks them to argue the case from the point of view of the Braggs, the EAA, Environmental Defense, or the Texas Attorney General’s office. I’ve tested it out once (after covering a few water/takings cases in the previous class), and it seemed to go very well.
If you’re interested in an MS Word version of the case study, in seeing the exhibits, or in seeing other documents from the case, please let me know. And a big thank you to Deborah Clarke Trejo, who represents the Edwards Aquifer Authority in this litigation and who provided me with some of the key documents.
Thursday, March 13, 2014
Texas A&M University School of Law seeks applicants for one or more Visiting Professors for one or two semesters in the 2014-15 academic year. We are focusing our search on two subject areas: (1) natural resources and environmental law (including related areas such as energy law, land use law, water law, biodiversity law, hazardous waste law, and wildlife law); and (2) patent law (including related intellectual property subjects). Applicants should have demonstrated outstanding academic and scholarly achievement in their respective areas, as well as strong classroom teaching. The Visiting Professors will teach one or two courses each semester and will be encouraged to participate broadly in the intellectual life of the law school.
Salary will be commensurate with qualifications and experience. Funding is available for professional travel and development activities.
Review of candidates will begin immediately. Expressions of interest should be submitted as soon as possible and will be reviewed on a rolling basis until positions are filled. Candidates should submit a cover letter including a statement of interest, a curriculum vitae, and a list of references, including their telephone numbers and email addresses, to Professor Meg Penrose, Chair of the Faculty Recruitment Committee, at the following email address: email@example.com.
An Equal Opportunity Employer, Texas A&M University is committed to employing quality faculty who will enhance the rich diversity of our academic community. In that regard, we are particularly interested in receiving applications from a broad spectrum of qualified people who are representative of the state’s diversity.
- Tim Mulvaney
Wednesday, March 12, 2014
Environmental law lost a giant last weekend. Since Joe Sax passed away, the environmental law professors’ listserve has been a steady stream of remembrances, many focused on his enormous contributions to the field. For me, a different memory stands out above all the others.
It was just a brief moment in water law. One of my classmates had a baby during the semester, and, perhaps because of trouble finding childcare, she started bringing her infant to class. The baby was usually quiet, but one particular day was a fussy one. This made the rest of us uncomfortable. We were twenty-somethings without children, living the glorious extended youth of the Bay Area, and working through the challenges of childcare was part of a distant future we rarely contemplated. This intrusion of a baby into our sheltered worlds seemed weird. And it wasn’t just any class the baby was intruding upon. We all worshipped—and, at least a little bit, feared—Professor Sax, not because of his personality but because of his stature and obvious intellect, which stood out even at a place like Berkeley. Poor manners had no place in that room. So we felt a palpable sense of relief when the student picked up her fussing baby and started toward the door.
Then Professor Sax spoke up. “There’s no need to leave,” he said, as though only a fool would have thought otherwise. “Babies fuss. That’s just what babies do. I don’t think anyone minds.” And saying it, of course, made it true. We realized that this person we thought of as an intellectual demigod was also a father and a grandfather. Everyone relaxed. Class went on. And we all learned something about the possibility of combining greatness with kindness and compassion.
Years later, I still want to be Joe. He could turn rigorous legal analysis into something profoundly elegant—charismatic, even—in a way I’ve never quite seen emulated, though not through any lack of trying. But even if I never achieve that grace, I at least can imitate him in other ways. It doesn’t happen often, but on the rare occasions when students bring their children to class, I smile, think of that day in water law, and try to make sure the parent and child both feel welcome. And if a baby ever does start fussing in my class, I’ll have my line ready, and I’ll think with fondness of the man I learned it from. I hope he would be proud, but more likely he’d think nothing of it. After all, that’s just what professors should do.
What a loss.
- Dave Owen
Tuesday, March 4, 2014
Last Saturday’s New York Times had a story describing the “defanging” of North Carolina’s environmental regulatory agency. The story began with this depressing quote:
“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors called to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”
Trip Gabriel, Ash Spill Shows How Watchdog Was Defanged, N.Y. Times, Feb. 28, 2014. What follows has become all too familiar: intimidated by political pressure, the state agency finds itself in disarray, even the threat of regulatory enforcement dissipates; and, sooner or later, massive amounts of coal ash start flowing downriver.
The story made me think of my own first in-depth lesson in the value of environmental enforcement. It came in what may initially seem like a very different context: universities. But the story provides an interesting morsel of recent environmental history, and it says a lot (I think) about enforcement’s role.
For years, universities weren’t accustomed to thinking of themselves as targets of environmental enforcement. But in the mid-1990s, EPA audited Yale’s environmental compliance, and the results would shock anyone accustomed to thinking of universities as environmental leaders. According to a Boston Globe story about the resulting settlement, Yale wound up pledging over half a million dollars to environmental programs and paying a $69,750 fine. Many New England Colleges Break Environmental Rules, Boston Globe, May 27, 1996. EPA’s northeast regional office also announced that it was making the educational sector a target of its enforcement efforts. More audits and more fines, many of them quite large, soon followed. See, e.g, Tatsha Robinson, UNH Faces Fine in EPA Waste Investigation, Boston Globe, March 15, 1999; Peter J. Howe, BU to Spend $2M in EPA Settlement, Boston Globe, October 9, 1997.
At the time, I was a recent college graduate working for an environmental consulting firm just outside Boston. For us, enforcement meant opportunity, and we aggressively marketed our own auditing services, promising universities that we would find, and fix, their problems before EPA came knocking. As a business move, it worked well, and I soon found myself seeing parts of college campuses that I’d never seen as a student. Some of what I found shocked me. I had worked on plenty of hazardous waste sites. But the scariest things I ever saw were in the chemistry labs of universities. Even a well-managed lab—and I did see some--is a dangerous place; chemicals that seem familiar to most researchers become quite worrisome once one reads their material safety data sheets. And many of these labs weren’t well managed. Among other problems, I saw old and potentially explosive picric acid containers; incompatible wastes stored together; and, in some places, unidentified, abandoned, frothing messes. The labs weren’t Love Canal, but they also weren’t anywhere I would want to work—or would want to send my children to school.
So why was this happening? The answer isn’t some old trope about evil, greedy corporations placing profits above environmental quality and human well-being. Universities are financially driven, of course, but I believed then, and still believe now, that most universities take their public service missions quite seriously. Nor was it a lack of expertise. One sometimes hears complaints that environmental laws have become too complex for anyone to comply with, but at most of these campuses, there were health and safety managers who had a pretty good idea what their school was doing wrong and how it might do better. Instead, the institutional problems were more mundane. Health and safety departments were understaffed. They also lacked leverage. At most universities, the star researchers rule the roost, and those researchers are unlikely to listen when a health and safety manager with only a bachelor’s degree explains why the lab needs to be managed differently—unless, of course, an enforcement threat adds force to the health and safety manager’s words. And for years, most universities hadn’t even considered the possibility of that threat.
When the enforcement threat did arise, it changed all of those dynamics. A few months after EPA announced that universities would be an enforcement priority, it hosted a public informational meeting on compliance at colleges and universities, and I went. The room was filled with high-level administrators, most of the people who would never have shown up at a health and safety conference a few months earlier. They were paying close attention, and they took what they heard seriously. Universities started hiring consultants to perform audits. They started listening to their consultants—and their own health and safety managers—when they recommended changes to environmental management programs. And they made the changes. Labs got cleaned up. Plans were updated and modernized. Better management protocols went into place. Training improved. When I left for law school, the transition still was just beginning. But even in my short time working with universities, I thought we were able to make a huge and positive difference.
So what does enforcement do? Part of the answer is so obvious that it’s disheartening how often it needs to be restated. It provides people with incentives to actually comply with environmental and safety laws. And every institution—not just evil corporations—needs those incentives; compliance requires persistent attention to detail, and we all have the impulse to cut corners. In addition, enforcement often creates change not by punishing the environmentally bad actors within in institution, but instead by empowering the people within the institution who want to do things right. At least, that’s what happened with universities, and the consequence has been a safer working and learning environment for thousands of students.
- Dave Owen
Wednesday, February 26, 2014
In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.
The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:
First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.
Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.
Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.
There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff. Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.
At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.
That, students will see, is a bad fact for the defense, a good one for the plaintiffs.
- Michael Burger
Wednesday, February 12, 2014
In the last few weeks, I’ve seen several reports and articles, some written by prominent people (I’m not naming names) that contain some version of this basic description of the Clean Water Act:
The Clean Water Act divides pollution sources into two general categories. Point sources are things like factory and wastewater treatment plant discharges. They’re mostly regulated under the NPDES program, which has worked pretty well. Agricultural and urban stormwater runoff are non-point sources. They’re regulated under the TMDL program, which hasn’t worked so well.
There’s some truth to this statement, but in one key way it reflects a very common misunderstanding of the Clean Water Act. Urban stormwater runoff actually doesn’t fall neatly into the non-point-source category. In fact, much of our urban stormwater moves through point sources regulated by the NPDES program; some urban stormwater runoff discharges through point sources exempted from the NPDES program; and some urban stormwater really is non-point source pollution.
This might seem surprising, because people constantly refer to urban runoff as non-point source pollution—without any acknowledgment that the statement isn’t categorically correct. But a simple comparison of a photograph and a statutory definition ought to illustrate why that’s wrong. What you see below is how most of our urban stormwater ultimately gets into waterways, and it sure looks like a point source to me (and, more importantly, to EPA, where people understand quite well what is and isn't a point source).
Clean Water Act Section 502(14): The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
Image from cenews.com.
Why does this matter? I think there are several reasons. First, any attorney who believes urban stormwater runoff is all non-point source pollution is going to have some embarrassing moments in practice. When your municipal client asks, “so why do we have an MS4 permit?” or when your industrial client says “so we don’t need to comply with our general stormwater permit?”, you’ll either quickly realize you misunderstood the Clean Water Act or you’ll give some very bad advice. More generally, figuring out what to do about urban stormwater is a big, big challenge, and it’s difficult to address that challenge if a common starting point is a misunderstanding of the Clean Water Act. If you believe that all urban runoff is non-point source runoff, then a logical conclusion is that reforming urban stormwater management is inextricably linked to TMDL reform, which, sadly, may be a tall order. You wouldn’t even realize the possibility that reforming NPDES stormwater permitting is both possible and, perhaps, promising.
So let’s get our terms right.
Wednesday, January 29, 2014
In my second year as an academic, I became involved in a major NSF-funded interdisciplinary research project. Initially, this did not go well. I learned, the hard way, that it is not easy to conduct interdisciplinary research with people you’ve barely met, who work in other fields, and who live two hours’ drive away from you. Yet I would count the project—in which I am still involved, now more productively—as one of the best learning experiences of my academic career.
That experience convinced me that it would be useful to write an article addressing the challenges of interdisciplinary environmental law research. It also led me to think that the standard debates about interdisciplinary legal research might not apply particularly well to environmental law, and that perhaps some empirical research might help inform those debates. So I distributed a survey to my peers, conducted some interviews, and, working with UMaine economist Caroline Noblet, wrote up an article, which now is available (in draft form) here.
Our hope is that the article will be useful to environmental law faculty—particularly at the junior level—who are interested in getting into interdisciplinary work; to non-legal environmental researchers who want some information about what environmental law professors do and how they think; and to anyone who wants to pontificate in an informed way about the role of interdisciplinary research in the legal academy.
For those who prefer the Cliff Notes version, here are a few key conclusions from the study (most of which are intuitive but some of which are potentially surprising or controversial):
- Environmental law professors are generally very interested in conducting interdisciplinary research, yet it forms a relatively small part of their research portfolios;
- Conducting interdisciplinary research successfully requires a large up-front time investment—you need to take time to get to know your collaborators and learn about their fields, and they have to get to know you—and the need for that time investment is one of the primary barriers to successful collaborations;
- Publication systems and institutional divisions do create pressure toward traditional disciplinary work (in other words, the legal academy generally doesn't push professors to become interdisciplinarians);
- Compared to tenured faculty, junior faculty tend to perceive more pressure to do traditional disciplinary work, though that pressure is by no means universally felt; and
- Law professors may be more interested in, and prepared for, collaborations with non-lawyers than the non-lawyers are for collaborations with lawyers.
And a few recommendations:
- Law schools and universities should work hard to create opportunities for informal contact between law professors and other faculty—in research settings, social settings, and in the classroom;
- Law schools ought to abandon any tenure or promotion policies that favor law review or single-author publications over peer-reviewed or team publications, and they ought to put their new policies in writing, so that junior faculty know about them;
- Visiting assistant professor and fellowship programs should consider adding an instructional component focused on research methodologies (and, perhaps, allowing full-time faculty to participate in the program);
- Law professors interested in working beyond the boundaries of their field should be aware that they will need to spend some time educating their potential partners about how legal research works, what kinds of questions it typically focuses upon, and how it could contribute to a larger project.
Again, the full article is here, and comments are welcome.
Wednesday, January 8, 2014
I love history, and have always been torn between my interests in both the function of the physical world (biology and the environment) and the function of reviewing historical events as a means of bettering the social world (history and other social studies). Historians interpret the past for many reasons, including to gain understanding of how both desirable and undesirable circumstances can be replicated or avoided (respectively) in the future. Consider the "technological optimist" view of history. I suppose the purest form of technological optimist would look back and note that society has always been improving - advances in medicine, food systems, transportation systems, the internet - to name only a handful of technological advances - have helped society increase wealth, human lifespan, and overall well-being. And increased access to information regarding calamities and human violence arguably mask the fact that, as some commentators have argued, society is overall becoming less violent. In other words, society is continually improving. Even though we can look back at some of the empires that have existed in the past, and arguably trace their fall to environmental calamities (see Easter Island, the Mayan civilization, the Roman Empire, etc.), modern society has no doubt moved to a place where it can avoid some of those pitfalls through technology. Thus, a technological optimist would at his or her most optimistic view society as fully capable of engineering its way out of the seemingly dire environmental challenges faced today.
In my International Environmental Law class we discuss the IPAT formula: Human Impact (I) on the environment equals the product of P= Population, A= Affluence (consumption), T= Technology. Thus if technology increases sufficiently, then it can offset population growth and increased consumption to reduce environmental impact. Of course, some commentators highlight the virtually impossible impact technology would need to have in order to offset the current rate of population growth and increased consumption (see Paul Ekins, The Sustainable Consumer Society: A Contradiction in Terms?, International Environmental Affairs, Volume 3, Number 4, at 242-257 (Fall 1991)). It seems clear then that reductions in both consumption and control of population growth will be necessary ingredients to any future that is sustainable.
I am somewhat 1/3 technological optimist and 2/3 pessimist. My family's Christmas dinner conversations involve my brother and I arguing over whether the future will be like Star Trek (his view) or The Road/The Postman/The Book of Eli (which I tend toward). Now, nothing I am about to say is groundbreaking, but it is helpful to ask: what does history tell us about the role of technology in achieving sustainability? How likely is it that we will be able to innovate fast enough to forestall calamity and continue to improve society the way we have done in the past? There are two important factors we see today for which there is no historical reference: population growth and the rate at which we have released greenhouse gases into the atmosphere. In 4.5 billion years this earth has never seen as dramatic of an increase in a species with such profound impacts on the environment as it has in the last few centuries with humans (as strikingly depicted in the chart at the beginning of this post). Thus, making projections about our future based upon the past is of far less value with this new variable thrown in. Also, while carbon levels and other GHGs have fluctuated in the atmosphere for millennia, never before has such a sudden release of fossil-fuel gases taken place over a two century period. These two variables should cause even the most optimistic technological optimist to proceed with caution when harnessing the value of history in projecting future outcomes.
On the flip side, all too often I hear discussions of the I=PAT formula framed as if each variable were completely independent. Of course, I tell my class that the "Affluence" (or consumption) variable is in large part only a problem because of what we are consuming. That is, we are consuming non-renewable substances in large part - products, goods, and services that are themselves made of non-renewables and that are produced using non-renewable energy sources. In fact, technology plays a key role in increasing the impact of both the "T" part of the equation AND reducing the "A" variable. If technology can change what we are consuming, to make the product/service as well as the energy inputs providing it renewable, then we are left with only the "P" variable as a primary challenge. As I've discussed before, perhaps one day our vehicles made entirely out of recyclable metals and renewable plastics (from lignin in pine tree bark), will be plugged into (via renewably created extension cords) power sockets in homes built out of renewable materials and powered by solar panels (an obviously renewable energy source), while the solar panels themselves are made out of the same recyclable metals and renewable plastics from biological sources. In other words, the 1/3 technological optimist in me sees a world with a closed loop system of consumption (affluence), and technology plays a key role in that future.
Ultimately, the most recent history of advanced civilization includes an almost complete reliance on the consumption of non-renewable, fossil fuels. If we are unable to project our future based upon history given new variables of population growth and GHG emissions, then we will need to change the game and foster a new variable of our own - that is, technology that we have never before used to make modern society a completely renewable society. Otherwise, I will win my bet with my brother, which I really would prefer not to do.
- Blake Hudson
Thursday, December 19, 2013
Pennsylvania's Act 13, signed by Governor Thomas Corbett in 2012, is one of the most sweeping state actions relating to unconventional gas development and hydraulic fracturing. The Act required municipalities to allow gas development in all zones, even residential ones. It also updated various state environmental regulations of unconventional gas wells and allowed local governments to place an unconventional gas well fee--essentially a tax--on gas development, which goes into a state fund and is redistributed to local governments for expenditures on roads, affordable housing, environmental projects, and other infrastructure and services. The commonwealth court in Robinson Township v. Commonwealth of Pennsylvania found, among other things, that the portion of the Act requiring municipalities to allow unconventional gas development in all zones was unconstitutional--it violated substantive due process by essentially requiring unfair zoning results and forcing arbitrary zoning not in accordance with a comprehensive plan. Today, a Supreme Court of Pennsylvania majority also found this portion of the Act unconstitutional because it violated the Environmental Rights Amendment of the Pennsylvania Constitution, which provides that "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." (One justice believes that this portion of the Act is unconstitutional because of substantive due process, not the Environmental Rights Amendment.) The opinion also addresses provisions of the Act that allow the Pennsylvania Department of Environmental Protection to grant waivers from mandatory setbacks of well sites from various resources.
Tuesday, December 17, 2013
From our friends at the University of Washington. Several current and former Environmental Law Prof bloggers have participated in this conference, and I think we would all agree that it's well worth the trip.
Call for Abstracts
UW Junior Environmental Law Scholars Annual Workshop
University of Washington School of Law
July 9-11, 2014
The University of Washington is pleased to announce the 3rd Annual UW Young Environmental Law Scholars Workshop.
This collegial two-day workshop features discussion of works-in-progress by early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows. We invite submissions from the broad fields of environmental, natural resources, and energy law. Prior workshop participants are welcome to submit new works.
Participating junior scholars will be asked to submit an unpublished work-in-progress approximately 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 short introduction 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
- Lisa Heinzerling - John Carroll Research Professor of Law, Georgetown University
- Christine A. Klein - Chesterfield Smith Professor of Law, University of Florida
- John Copeland Nagle - John N. Matthews Professor of Law, University of Notre Dame
- William H. Rodgers - Stimson Bullitt Professor of Environmental Law, University of Washington
To apply, please submit a cover letter, an abstract of no more than 500 words, and a C.V. to firstname.lastname@example.org by March 15, 2014.
All meals will be included. Participants will be responsible for their travel and lodging costs.
Wednesday, December 4, 2013
Outside the world of law, environmental academics and professionals spend a ton of time analyzing data coded to specific geographic locations. Most environmental lawyers are at least somewhat aware of this phenomenon; most of us know, for example, that GISs and simulation models have become central to environmental work. But we still tend to think of spatial analysis as a sideshow to our legal world. I think that’s a mistake. These technologies have become so prevalent, and so central to other environmental disciplines, that we really need to understand what they can and can’t do—and, importantly, how they might affect our work.
A few years ago, I began working on a paper designed to explore some of those implications. It’s now out—finally—in the Utah Law Review, and it attempts to address the implications of spatial analysis for some of the grand old questions of environmental law. Among other subjects, the paper discusses how technological changes could affect the environmental challenges for which regulation is possible, the extent to which we use planning and environmental trading systems to address those challenges, and the ways we allocate authority. The article also closes with a few words about what spatial analysis might mean for the methodologies of environmental law research.
Interested readers can find the paper here.
- Dave Owen
Monday, November 25, 2013
There’s been some big and—at least for many—surprising news on the environmental front lately. A recent analysis published in Climatic Change challenges the existing state-centric and, at times, narrow focus of the climate change debate. According to this new analysis, a “total of 914 billion tonnes of CO2-equivalent (GtCO2e) has been traced to 90 international entities” and “[t]he emissions traced to the carbon majors represent 63 % of global industrial CO2 and methane from fossil fuel combustion, flaring, venting, fugitive or vented methane, own fuel use, and cement between 1751 and 2010.” To translate: this means that 90 international entities, consisting of investor-owned businesses as well as state-owned and government run entities, are responsible for producing almost 2/3 of post-industrial era greenhouse gas emissions. Among the sobering dimensions of this revelation, is not only how few companies are actually responsible for generating the brunt of the emissions that now plague so many across the globe, but also how difficult it is today to disaggregate the decisions made by these companies from the society that has emerged and evolved in reliance on – and, now demanding – cheap energy. Compounding this is a dispiriting concern about how existing physical and political infrastructure makes it incredibly difficult for even the most optimistic among us to envision a non-fossil fuel based energy system – at least in the near term.
This new revelation brings to mind how esteemed environmental scholar Oliver Houck so vividly discusses Louisiana’s relationship to the oil industry. As Houck explains, the oil industry, an industry around which so many facets of Louisiana’s social, political, and economic culture now revolve, simultaneously feeds and starves the state. In commenting on the response in Louisiana to the 2010 blowout on the Deepwater Horizon rig Houck offers: “The reaction of Louisianans to the BP blowout has been to protect the industry and its longstanding commitment to what has turned out to be a very dirty …, plainly unsustainable … and deleterious relationship ….” Louisiana’s solicitous reaction is readily understandable: over time, the more the state benefited from the presence of the oil industry, the more the constituents of the state came to rely on those benefits and to structure the society around those benefits. Louisiana became more and more dependent on the industry and all of its collateral benefits. The oil marriage brought the benefits of jobs, money, and collateral infrastructure. These benefits, however, are uneven and adhere only to some and, with regard to the greatest benefits, only to a very few. And, as the relationship has progressed, the destructive forces have become more apparent and more corrosive. From the canals that rip apart and degrade Louisiana’s wetlands, to the oil that poisons the coastal waters and all of its inhabitants, to the economic devastation that comes both slowly and in sudden bursts to the long beholden citizenry of Louisiana, the marriage is gradually devastating Louisiana from the inside out. This is a marriage—but not of equals. It’s a marriage of deep convenience that’s turned into one of deep dependency. And, it is a marriage that, from the very beginning was doomed to self-destruct. Contemplating the future, Houck bemoans: “Then again, this is Louisiana, and we and oil remain faithfully married—at least until the industry leaves us, as it surely will after a few more heady years, with only the memories and a wasted skin.”
The picture Houck describes of Louisiana is vivid and stark. Unfortunately, this is not the only marriage of its sort around. The relationship structure is often replicated – too often replicated –in relation to natural resources worldwide. (Just think about the operations of mining companies in the US and around the world.) But, the most sobering thing about this recognition in light of the ongoing climate negotiations and this recently released greenhouse gas study is that not only is the relationship replicated, but it is replicated on different scales: not only the relatively small state-level scale Houck describes, but also on a much grander, global scale. The most vivid representation being, of course, our relatively recent but now fully committed marriage to the handful of companies that enable us to consume seemingly limitless amounts of cheap energy, more specifically seemingly limitless amounts of fossil fuel-based energy.
In the global community’s marriage to the companies that fuel and enable our fossil fuel consumption, the marriage brings widespread benefits in the form of economic development, with all that this entails. But, the benefits are far from pure; they cut cleanly and divide sharply. They fall unevenly across and within States and they institutionalize inter- and intra-state disparities in human health and well-being. Yet, the benefits are very real and are generally seen as desirable if not essential to basic human rights. As powerful – and empowering – as the benefits of this marriage are, though, the marriage is riddled with faults. And, the faults of the marriage mimic tectonic faults; they are powerful, unpredictable, and capable of wreaking great destruction. The greenhouse gases these 90 entities have and continue to release are not visible. They do not rip asunder the terrain of the earth like the canals and pipelines do in Louisiana. Instead, they blanket the Earth in warmness but the comfort of this warmness generates beads of sweat that drip down the face of the Earth changing it as they roll. The process begins slowly but eventually gains momentum and the marriage becomes more and more painful both to witness and to live within. And, the pain of the corroding marriage is borne disproportionately by the innocent half; the half that was not able to grow and develop as quickly or fully within the bounds of the marriage.
As in Louisiana, we – as a collective whole – remain faithfully married to our 90+ generating entities and to the energy they produce. We do not yet know when or how or even if the marriage will end but we do know that the marriage is toxic and that whether it ends or drags on endlessly, it will leave us with far worse than a wasted skin.
- Cinnamon Carlarne
Friday, November 22, 2013
Over the past several months, I’ve spent a lot of time talking to environmental attorneys in my home state about the state of their practices. The reason for this effort is straightforward: I practiced what seems like a long time ago and in a faraway state, and I like to keep my knowledge of practice current even if it’s increasingly indirect. But I also thought a report on some of the things I learned might be useful for current students who are wondering what their future practice might look like (and what courses they should take), and for anyone interested in the ways environmental law practice varies from place to place.
The discussion that follows comes with an obvious, but important, caveat: environmental law practice does vary tremendously from location to location. If I had been talking to attorneys in rural Ohio, I probably would have heard a lot about fracking. In California, water allocation is a very big deal. In Maine, there is no fracking and water allocation is almost a non-issue (which makes me, and no one else, kind of sad). So the comments that follow don’t apply everywhere. But I suspect some of the issues that came up are representative of broader trends, particularly outside major metropolitan or manufacturing areas.
The Generalists. Almost all of the attorneys I met with emphasized the generalist nature of their practices. Many had developed specialties in particular areas, but they had multiple specialties, and their expertise spanned well beyond the bounds of what we would traditionally think of as environmental law. This was a practical necessity. While some attorneys had enough traditional environmental law work to keep them busy, most needed to combine their environmental practices with other areas. And even matters that initially seemed to be primarily about environmental law often turned out to implicate property, contract, tort, tax, and local government law (among others). Only at one firm did an attorney tell me he thought client needs were creating the need for greater specialization, and the comment sparked a lively discussion, with several of his colleagues disagreeing.
This isn’t particularly surprising, particularly in a smaller legal market. But it’s worth noting because it has important implications for the ways lawyers prepare for environmental practice. In my state, at least, a lawyer with ten environmental law courses under her belt is probably going to be a less attractive candidate than a lawyer with half as many environmental courses but a stronger general legal education.
The Land Use/Energy Intersection. Another unsurprising, but still important, observation is that environmental law remains deeply intertwined with land use and energy law. In Maine, much of the environmental legal work arises from energy projects, with wind power a particularly significant generator of attorney hours, and hydro still playing an important role. Traditional land use disputes also continue to be part of the bread-and-butter work of environmental attorneys. Land use and energy law, it seems, are still very important courses for environmental law students to take.
Litigious West, Collaborative East? This is just a qualitative impression, not backed by any rigorous analysis, but it seems to me that there’s a lot less environmental litigation in Maine than there was when I practiced in California. Many of the attorneys I spoke to shared that general impression. They noted that disputes tend to be settled without litigation, and that most of the litigation that does occur involves administrative proceedings and never gets to the courts. Those statements could just reflect Maine’s self-image--perhaps accurate and perhaps not--as a place where self-reliant people work things out in civilized ways. But I think there’s something to it. Years ago, when I made the switch from eastern environmental consultant to western environmental law student, I was taken aback by the intensity and, at times, the vitriol of environmental disputes in the west. The 2000 PIELC conference, at which Julia Butterfly Hill was nearly shouted off the stage by anarchists who thought her a sell-out, was a bit different from anything I’d experienced in Massachusetts. And I think those cultural differences (and the environmental and economic differences that help create the cultural differences) do impact the ways environmental law is practiced.
The March of the Consultants. Another important impression from my meetings involves the role of environmental consultants. In Maine and, I think, everywhere else, there’s a form of ecological succession in the environmental profession. Lawyers tend to thrive in disturbed habitats, where conditions are changing and the rules are uncertain, or in environments (like litigation) where they can perpetuate and protect their niche. But as the habitat matures and questions become more settled, the consultants move in, using their relatively lower prices to occupy habitats once dominated by the legal profession. Before going to law school, I was part of that shift; I worked with an ex-lawyer performing the kinds of environmental audits his old law firm had once done. And the attorneys I spoke with all agreed that the trend is continuing, with lawyers increasingly reviewing the work of consultants or ceding parts of the field to them entirely.
That has interesting implications for legal education and environmental policy, though I’m not sure what they all are. If many of the people who work in the environmental law field lack legal training, the gaps in their educations could impact the ways those laws are implemented, and it would be intriguing to explore whether and how those changes are occurring. It also creates opportunities, I think, for law schools that can offer training to future environmental consultants, or who can bring students from other disciplines into law school classrooms.
An Interesting Job. One last thing emerged from my meetings: the people I talked to generally seemed quite enthusiastic about their work. I probably shouldn’t make too much of that; a person who doesn’t like environmental practice probably would switch to something else, or at least would be less enthusiastic about telling a professor about her work. But even discounting for some selection bias (and, perhaps, confirmation bias), I think there’s something to my impression. The environmental field remains an interesting place to work, and that’s true whether you’re in government, the non-profit sector, or at a firm.
Thursday, November 21, 2013
I am an avid sports fan. In a world that is often fraught with ugliness, I find that sports provides a nice, safe, uncompromised place for reflection on the better qualities of human behavior and circumstance (though sports can at times have its ugly side too, of course). My Major League Baseball (MLB) team is the Atlanta Braves. I have been a fan since they went from worst to first in 1991, when I held tightly onto my homemade tomahawk and lucky syrup bottle cheered vigorously during each game of the World Series. At that time, the Braves played at Atlanta-Fulton County Stadium. In 1997 they moved to Turner Field, which was built as part of the 1996 Olympic Games. Before Fulton County Stadium was turned into a parking lot, this is what the two stadiums looked like side by side:
Though some have argued that Turner Field is not a “particularly distinctive or noteworthy ballpark,” it makes for a wonderful baseball watching experience in my opinion. It has a new feel combined with the throwback style reminiscent of Camden Yards and other "retro parks" built in the last few decades. For a while Turner Field even sported the largest (or one of the largest) jumbotrons in professional sports. The stadium is not old or run down by any means. As Jerry Crasnick describes:
Turner Field, at 17 years of age, is younger than U.S. Cellular Field, Camden Yards, Rangers Ballpark in Arlington, Progressive Field and Coors Field -- all stadiums that have been built during the ballpark "renaissance" that's taken place in baseball over the past two decades.
In fact, the only problem I see with Turner Field is its location. Often, stadiums are either far outside of the city and relatively easy to get to and park (Rangers Ballpark in Arlington; Citizens Bank Park in Philadelphia), or they are in the city and easy to walk to (Coors Field in Denver; Busch Stadium in St. Louis). Turner Field is neither - it is in no-man's land, too far to walk to (with few public transportation options) and not easy to drive to and park. Other than that, however, it is a perfectly functional and nice ballpark (and I've visited many - I only have 3 more MLB stadiums to visit of the 30 major league teams - part of my bucket list).
So when I heard that the Braves were ditching Turner Field and moving to the suburbs of Atlanta to build a new park I was quite shocked. Look, I get it. Lease terms are not always fair, and it takes two sides to work things out. I also get that buildings, including stadiums, have a lifespan. Once they get into old age both structurally and functionally it may be time for a change (think of Tropicana Field in St. Petersburg, FL, and home of the Tampa Rays - probably the worst place to watch a baseball game in the history of the sport, including little league fields across the United States. Of course, with Tropicana it is not structural age that is the problem, but rather the lack of functionality. But see Fenway Park). Finally, I get that sometimes teams leave stadiums that are not suited to their sport. This is what happened recently when the Miami Marlins left the stadium where the Dolphins play professional football - the venue was designed to be a football stadium and is a terrible place to play or watch baseball. So I could hardly fault some professional teams for looking elsewhere to play. But leaving this well-functioning, relatively new stadium? I am sure it seems to make a lot of economic and business sense for the Braves, but from a strictly land use and environmental perspective it symbolizes the problem of poor land use planning and sprawl in the nation.
The new stadium will be located located about 10 miles north of downtown, at the I-75, I-285 intersection, and will cost approximately $672 million to build, according to a website devoted to the project. The development is projected to be "surrounded by entertainment options and green space, with the hopes of making the development a year-round destination." But, as we have seen in the past, the grand premonitions of economic boon do not always come to fruition. As noted by Jeff Schultz:
When the Georgia Dome was built, which necessitated the clearing of land and relocation of several churches, political leaders similarly trumpeted the possibility of tremendous development in the area. We heard similar sound bites when the Olympic stadium (which morphed into Turner Field) was built. But anybody who looks up and down Northside along the Georgia Dome, or Capitol Ave and the streets surrounding Turner Field, knows that revitalization never took place. They remain scarred neighborhoods. Residents did not benefit from the construction of sports facilities. In any city, they almost never do.
Notwithstanding the uncertainty of economic growth, there are environmental impacts to consider. To be clear, it is not as if the new park will be built in pristine wilderness, as you can see from this satellite photo depicting the already sprawling outskirts of Atlanta where it will be located:
Even so, there are invariably going to be environmental impacts resulting from the project: the removal of even more natural capital from the area, the energy intensive removal of prior infrastructure that was itself energy-intensively constructed (what are the carbon costs of all this stadium shifting?), watershed impacts whose contribution to already significant non-point source runoff problems in the area will be indeterminable until long after the project is completed, among a number of other environmental impacts. But here is the real kicker: Turner Field is set to be torn down after the Braves leave in 2017 to make way for, you guessed it, more development (at least we can legitimately call this development "infill"). Right at 20 years after this mammoth structure was built (an exceedingly energy intensive endeavor to be certain), it will be torn down.
This whole situation brings to light the many problems associated with land use planning in an "over-decentralized" system of government, where more than 88,000 disparate subnational governments act as rational herders on the national commons that is the land base and the natural capital present upon it. There is certainly no federal coordination, and states typically allow local governments a great degree of discretion in planning, especially if there are economic gains to be made. With so many jurisdictions implicated, individual projects may not appear to have a great environmental impact on the surface. But it is in the aggregate that so many of the intractable sources of environmental degradation, like nonpoint source water pollution, arise. It is basically as if 88,000 herders were in a nation-sized pasture standing stationary, adding sheep to their herd through new sheep births, until the increasing number of one herder's sheep eating grass resources merge with neighboring herds. Then suddenly, the grass resource is entirely consumed. Metaphorically it is the logic that drives a Radio Shack to move from the indoor mall of the 70's and 80's into the strip mall of the 80's and 90's, into the indoor-outdoor mall combo of the 90's and 2000's. The same activity taking place in three different spaces throughout time, while the prior two spaces remain unfilled on some vacant, blighted development space (for more discussion on the "dead mall" phenomena, see here). This is inefficient usage of land at its finest. Anecdotally, the logic reminds me of the time I was driving through Texas and saw a new Sonic restaurant franchise being constructed right next to a nearly identical Sonic restaurant franchise that was closed and abandoned - on the adjacent lot. Seriously.
The refrain is all too common in the environmental field - the federal government does not regulate nonpoint source pollution from agriculture, stormwater, and other vectors because the regulation of such pollution is a state and local government land use regulatory role. Yet we see eutrophication and toxification of our waterways (resulting in fisheries impacts in both freshwater and ocean systems), loss of biodiversity from habitat fragmentation due to development (which increases federal tax payer expenditures later in efforts to protect species threatened with extinction), continued loss and degradation of wetland functionality, traffic congestion and associated air quality impacts from the suburbanization of our cities, increased economic and environmental costs foisted on society through disaster events like flooding (from building in floodplains), among a number of other environmental ills. Is it really any surprise that these problems are arising? Can we really continue to sit back and act like we don't know what contributes to all of these problems? It seems clear that we know, so maybe we just don't care? Clearly the aggregated effects of individual municipal land use planning decisions play a key role in all of these problems. It seems that we either need to do something about it, and get serious about growth boundary protections and other land use planning options available to cities and counties that encourage (or compel) infill development, or just make a choice that we are going to live in an increasingly degraded environment. This is an ethical choice - we should either make an ethical decision to remedy the poor land use planning that contributes to this multitude of environmental ills, or accept that continuing to allow our environment to degrade is the ethical choice that we have made. We should at least be honest about it. We cannot keep pretending that we do not understand why all of the above environmental problems are proceeding apace - it is clearly because individual decisions like the Braves' decision to leave a perfectly functional stadium and build another one elsewhere do not appear environmentally harmful after an isolated, narrowly focused cost-benefit calculation. But in the aggregate the collective rationality of 88,000 local governments is doing great harm to the national natural capital commons. And it is not about not developing. It is about developing smartly and using land and the natural capital present upon it efficiently the way we should use any scarce and finite resource.
Probably the best way to sum up the logic of inefficiency in the usage of land that drives so many of our land use decisions are the words of one major league general manager, who (as Crasnick describes) stated:
"What are you thinking if you're the Rays? . . . They can't even get one stadium -- and the Braves have two?"
- Blake Hudson
Wednesday, November 20, 2013
I wrote a little bit a bout my first experience with MOOCs last week. I wanted to follow up to say a little more about the other MOOC I signed up for, which was a very different experience.
While my first MOOC was to help me figure out how to do a MOOC myself (and just to learn about the process), my second MOOC was to improve my research. Here is where I have a confession to make: I never took stats. I am terrible at stats. Not so unusual for a law prof but not really acceptable for someone with a graduate degree in Environmental Science and Policy (It's actually a degrees in Environmental Science, Policy, and Management from the Society & Environment concentration because frankly Berkeley just can't seem to make simple names for their departments.) I use stats in some of my work, but only by relying heavily on co-authors, post docs, and hiring graduate students. So I decided to take a stats course.
Where to go to learn stats? Well it seems to be a common enough need that every MOOC company has a stats course. There are also a couple of in person law-prof focused stats courses out there (like the one that happens every summer at UCLA). I ended up choosing a course from Udacity. Udacity's offerings are not as numerous (feels more like training seminars than college courses), but I really liked the format and the faculty. Unlike Coursera, you can take a Udacity class at your own pace. You could just power through the whole thing in one big Stats week or follow my path and take 6 months to finish the course (no I am still not done so don't ask me to look over your stats yet). Of course if you need the scheduled course and discussion times to motivate you to finish the course, then Udacity isn't for you but I am finding it very helpful. I still miss the student-teacher interaction and would benefit from having classmates to work on problem sets together, but it is cheaper and easier than the other options for learning stats out there.
So all this made me think about what other types of courses could be helpful to environmental law professors to aid us in our research and teaching. Not where would we point our students, but what might we want to take ourselves. I am not so interested in taking an environmental law course, but perhaps a chemistry from environmental lawyers course would be good. What else? Conservation biology? Psychology?
(btw - can we talk about how much fun it is just to say the word MOOC. mooc mooc mooc. Almost has good as Frack! The environmental law lexicon is expanding in a way quite pleasing to the palate and the ears)
Friday, November 15, 2013
I recently finished my first MOOC. Not teaching a MOOC mind you, but I decided to take a couple of MOOCs. I enrolled in two and thought I would share some of my experiences and thoughts with you, particularly on the role of MOOCs in teaching Environmental Law. I enrolled in two different MOOCs for two very different reasons. I am going to talk about the first class today and chat more about my second experience next week.
I took a Climate Change course being offered by the University of Melbourne through Coursera. I chose this course for several reasons. Like many of my students, my choice was driven partly by schedule and professor. It was being offered August – October and taught by a slew of faculty including Jon Barnett, whose work I have read often and have cited periodically. My goal in taking the MOOC was to learn how MOOCs work and get a feel for what it might be like to put together a MOOC. So I chose a course on environmental issues (frankly, I was also just curious to see what would be included in an undergraduate course on climate change).
I learned a lot with this course. First, I learned more about climate change that I had known before. The two weeks on physics was fun and new and the detailed examples of the South Pacific Islands were quite helpful. I think I probably ended up as a typical MOOC student in that I listened to most of the lectures, did some of the readings, and never turned in my final assignment. I loved being able to watch lectures anywhere on a variety of devices (including my laptop, ipad, and smart phone). It was great to be able to schedule my own work and to multi-task without guilt (I got lots of knitting done). While the schedule was flexible with this course, there were periodic deadlines and you did need to roughly keep up with the materials as they became available. I also enjoyed seeing the different ways of presenting the lectures visually (lots of power point and video) and found a website with links and videos to be helpful. I found myself often jotting down ideas for my own non-MOOC environmental classes. It was also very cool to have classmates from around the world. I don’t think I even interacted with any other Americans in my online conversations or peer review processes.
What didn’t work for me? Well the flexibility in some ways means that it was really easy to put off assignments or skip weeks. (I’ll confess, I was motivated to take the course but not actually to put a lot of time into when well, you know, I am supposed to be writing and stuff.) I hated not being able to ask questions. I got confused in one of the physics lecture and didn’t quite understand a diagram. In class, this could be asked quickly. In a MOOC, you can ask a question in an online forum (or perhaps on twitter or facebook) but it can take a while for the TAs to get around to answering everyone. The online discussions did not work for me. I couldn’t figure out how many were enrolled in this class but it was oodles and felt like gazillons. The pace of the online discussion was fast, and keeping up with it would have been 5 times the work of the rest of the course. The conversation was all over the place politically with a lot of vicious statements that I just don’t see as much in a class where people can see each other face to face. The peer editing was a mixed bag too. With these big classes, the faculty and even the TAs can’t grade the work. This is why everything is done by either peer review or multiple choice questions. This has its obvious limits. One that I didn’t think of until I got my peer reviews back though was that many of my peers struggle with English. I literally couldn’t understand the sentences in one of my peer reviews – made me think someone had typed something into google translate and put too much trust in the result (hey at least they gave me full marks).
Any Lessons for Environmental Law? I am always making my students do annoying stuff try new things. Over the past few years, my natural resources students have had blogs, wikis, and websites. I am thinking of making them tweet next semester (I know that is so 2010 – maybe we’ll do snapchat instead). So it is maybe not surprising that I was intrigued by the idea of doing a MOOC. I quickly concluded though that it is not a good approach for teaching environmental law – at least not the way I want to teach it. There is a strength in moving lectures online and letting students do some self-pacing, but I would not feel comfortable losing the group discussions and exercises that we do in my classes. While some of my colleagues are talented at writing good multiple choice questions that really challenge students and require application of knowledge and skills, I am not one of that ilk. It is important to me that my students work on written and oral advocacy. I want them to work in groups and I am crazy unwilling to hand off reviewing their work to someone else – yes I am that controlling. As of right now, you won’t see me offering a MOOC until I can figure out a way to incorporate those elements (perhaps the answer is making the MOOC and OOC to start with). For those of you not yet aware, there is an environmental law MOOC out there already up and running. It is a 6-week course and does not profess to be a substitute for a law school or even an undergrad course on the topic. Not sure when it will next be offered, but could be fun see what is covered. Anyone wanna be in my study group?
- Jessie Owley
Tuesday, November 12, 2013
The "Tragedy of the Commons" is that everyone overuses resources to the point of extinction. Since no one has a vested property interest, no one has the incentive to moderate their activities. On the contrary, the exploitation continues. One might say that climate change is a "Tragedy of the Commons." Since no one owns the atmosphere, everyone continues to dump greenhouse gases. Except, climate change may not be a tragedy of the commons. Typhoon Haiyan that hit Philippines was of proportions that scientists have long predicted would occur, with increasing frequency, because of climate change. Islands have been dessimated, houses have been flattened, and several other properties have been destroyed, some beyond redemption. These are not commons. They belong to the people of Tacloban, to the people of Philippines. If climate change is the cause of intensified storms that destroy property and territory, the solution does not lie in creating property rights in the atmosphere. It lies in respecting the property rights that already exist. As nations meet for the 19th Conference of Parties to the United Nations Framework Convention on Climate Change, this is the question they should consider: how do we protect legal rights to property of others?
Thursday, November 7, 2013
Dan Farber has a new post on Legal Planet in which he argues that the coal industry and electric utilities will lack standing to challenge EPA’s new source performance standards for coal-fired power plants, which the agency proposed in September. Dan contends that because low natural gas prices are making new coal-fired power plants uneconomical (as compared with new natural gas-fired power plants), would-be industry challengers to EPA’s regulations will be unable to show that the regulations cause them any injury. In other words, as long as new coal-fired plants are not being built because they are uneconomical for reasons having nothing to do with the EPA regulations, the regulations cannot be hurting the industry. The mere possibility that the industry may build new coal-fired power plants in the future if conditions change, Dan argues, does not constitute an injury under standing doctrine.
Dan’s standing argument has some force, although I don’t think it is a slam dunk. Despite the precedent that Dan cites, the question of how likely a plaintiff’s injury must be to suffice for standing purposes often gets squirrelly. See, e.g., Natural Res. Def. Council v. Envtl. Prot. Agency, 464 F.3d 1, 6 (D.C. Cir. 2006) (noting differences among courts in deciding when increases in risk can confer standing).
My point, however, is not to agree or disagree with Dan’s argument, but to question whether pushing the argument would be a good strategy for EPA or environmentalists. It is quite possible that the cost of natural gas relative to coal will change in the future to the point that new coal plants would be economically viable in the absence of the new EPA regulations. The EIA, whose projections Dan cites (by way of a Washington Post article), has been wrong before about such things, and in fact has been accused of systematically underestimating natural gas prices. If a utility company lacks standing now to challenge the new regulations for the reasons Dan cites, I would think it would be able to challenge the regulations later if the price of natural gas increases (or the price of coal drops). Normally such a challenge would be time-barred because the Clean Air Act has a sixty-day statute of limitations for challenges to regulations. See 42 U.S.C. § 7607(b)(1). But if a utility was barred from filing suit earlier, the statute of limitations would not bar a later suit. See 42 U.S.C. § 7607(b)(1) (stating that petitions for review “based solely on grounds arising after” the expiration of the initial sixty–day period are timely if filed within sixty days of the new grounds); Honeywell Int'l, Inc. v. EPA, 705 F.3d 470, 472-73 (D.C. Cir. 2013) (applying this exception).
Thus, it is not clear to me that EPA would be better off with a putatively favorable ruling on standing now that leaves a latent industry challenge to the regulations out there waiting to ripen, rather than a ruling that allows a suit now and bars future suits.
Monday, October 28, 2013
For many years, adaptive management has been all the rage. The basic concept is appealingly, if deceptively, straightforward: when we take actions that will have environmental consequences, we should monitor those consequences, learn from the monitoring, and adjust our actions based on what we learn.
That seems eminently sensible, but in practice, adaptive management has often proven challenging. There are many reasons why, but one of the most important is that the requisite monitoring is often missing. There are financial disincentives to monitoring; it can be expensive, and money spent on monitoring is money not spent on other forms of environmental protection, or on other priorities. And there are institutional disincentives. If monitoring reveals the need to change course, that can be embarrassing to the decision-makers who selected the initial strategies, as well as frustrating to people who have relied upon those strategies. As a consequence, monitoring is often shortchanged, and adaptive management programs often fail to involve much adaptation.
Recently, I stumbled upon a document that describes an innovative way of dealing with this incentive problem. A group of federal and state agencies recently developed a guidance document entitled Determining Appropriate Compensatory Mitigation Credit for Dam Removal Projects in North Carolina. As the title suggests, the intent of the document is to provide guidance to people (including mitigation bankers) who compensate for stream fill projects by removing dams. That’s intriguing for a lot of reasons, and one involves the links between monitoring, offset ratios, and adaptation.
A little background should put that in context. When regulators allow a permit recipient to use off-site mitigation to compensate for a project’s on-site impacts, they often use something called an offset ratio. For example, a developer might be obligated to restore four acres of habitat in return for developing one acre. Or a mitigation banker that restores four acres of wetlands might receive one acre of credits to sell. The ratio is designed to compensate for a number of factors, including the temporal delay between the destruction of one area and the restoration of the other and the pervasive uncertainties about whether restoration projects will achieve lasting success.
Like most mitigation programs, this guidance document contemplates using that approach. But there’s a twist. For credits generated by restoring the stream reach above the dam:
The applicant can select a predetermined amount of credit or conduct research that will better determine the extent to which anadromous fish are using the newly accessible habitat. If the applicant can satisfy the Research Option criterion, it may be possible to receive mitigation credit exceeding the amount given with the predetermined option.
In other words, you can get extra credit if your monitoring demonstrates that the project succeeded (if your monitoring reveals that the predetermined ratio was excessively generous, however, your initial credit does not get revoked, though hopefully the agencies would use that information to inform mitigation ratios for future projects). Implemented carefully, this approach could be a useful incentive to perform monitoring, or an effective way to compensate for the absence of monitoring.
There are obvious potential pitfalls. The approach only works if the predetermined option is conservative. Otherwise there will be limited incentive to monitor, and the environment also may come out on the losing end of too many deals. It also only works if the researchers strive for objectivity, which may not be easy to do, particularly if they get their paychecks from the same entity hoping to claim an enhanced credit. Accordingly, some sort of third-party monitoring system might be appropriate. But those challenges, though real, seem manageable, and the concept therefore holds promise for addressing some of the perverse incentives that can limit adaptive management.
- Dave Owen