Thursday, March 2, 2017

Myths, Realities, and the Clean Water Rule Controversy

On Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act.  The rule, if and when it is finalized, would replace the “Clean Water Rule” released by EPA and the Corps during the summer of 2015.  Much of the political rhetoric surrounding the Clean Water Rule has suggested that the 2015 rule was responsible for massive economic impacts and that removing it will be a source of economic relief.  President Trump’s own remarks, for example, were riddled with such complaints.  But for several years, I’ve been researching the implementation of federal stream and wetland protections (the results of those inquiries appear in just-published articles here and here and in an earlier article here).  The truth, I’ve learned, bears little resemblance to President Trump’s claims.

In fact, the 2015 rule has had hardly any impact.  That’s partly because the Sixth Circuit stayed implementation of the rule not long after it was enacted.  But even if the rule had remained in force, its primary consequences would have been minor adjustments in the scope of federal jurisdiction and somewhat heightened levels of consistency and predictability.  Indeed, the scope of federal jurisdiction would have been narrower than it was in 1986, when EPA and the Army Corps—overseen by the Reagan Administration—last promulgated regulations defining Clean Water Act jurisdiction.  The rule, in short, should not have been a big deal.

So why, then, did the rule generate a firestorm, and why has Donald Trump made replacing it such a priority?  One reason is that some regulated entities have never been comfortable with the scope of Clean Water Act jurisdiction (for others, that jurisdictional scope is only a minor concern, or, if the they need clean water, an important benefit).  For those entities, the Obama-and-EPA-are-overregulating story was just a convenient hook upon which to hang forty years of annoyance.  The second reason is that even though jurisdictional boundaries have not expanded in decades, the thoroughness and scope of regulation within those boundaries has.  It used to be fairly easy, in many parts of the country, to fill jurisdictional waters.  As Clean Water Act regulation evolved, some of that ease went away.  Again, this trend was not peculiar to the Obama Administration, or even to the federal government; some of the changes emerged from red states and during the Bush I, Clinton, and Bush II administrations.  Pinning the changes on the Obama Administration is just a convenient rhetorical device.

Because the Clean Water Rule didn’t actually change much, the most important part of the executive order isn’t the language directing EPA and the Army Corps to rescind the old rule.  Instead, it’s language at the end of the order directing EPA and the Army Corps to “consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”  Justice Scalia’s Rapanos standard would eliminate federal jurisdiction for any waterway that lacks a relatively continuous surface connection to navigable-in-fact waterways.  In somewhat plainer English, that means the Clean Water Act would no longer protect ephemeral or intermittent wetlands and streams.  That would be a drastic shift.  Across the nation, a huge percentage of our streams are ephemeral or intermittent, and in drier regions, a continuous-surface-connection standard would eliminate Clean Water Act protections for nearly all aquatic features.

That drastic shift would have terrible implications for water quality.  Ephemeral and intermittent streams and wetlands are not the most charismatic of environmental resources, but they are important.  In recent years—particularly in the years since the Supreme Court’s Rapanos decisions—a growing body of scientific literature has explored the implications of tributary waterways, including intermittent and ephemeral streams, for downstream water quality.  Scientists have discovered that very small tributaries play crucial roles in processing nutrients, and thus protecting downstream waterways from algae blooms and dead zones; limiting floods; recharging groundwater; sustaining steady flows; supporting biodiversity; filtering pollutants; and maintaining fluxes of sediment and debris.  In simpler terms, they protect water quality, water supplies, and public safety; they make the rivers, lakes, and bays that we love places worth loving.  Fill them in, and those benefits will disappear.  Yet that is exactly what the new executive order asks EPA and the Army Corps to do.

(For a very partial sampling of this large body of literature, see here, here, here, or here, and for a synthesis report, see here.)

Beyond water quality, this controversy reflects a larger tension between environmental law’s narratives of conflict and of collaboration.  In their speeches about the Clean Water Rule, Donald Trump and the rules other opponents have emphasized a story of less-than-zero sum conflict, in which EPA (they never mention the Corps) is driving thousands of Americans out of work for little environmental gain.  It isn’t just the latter part of that story that is false.  One of the most striking lessons of my research on stream and wetland protection was the extent to which the Army Corps has found ways to increase regulatory protections for waterways while also finding more efficient, predictable, and low-cost ways to implement those protections.  Stream and wetland protection wasn't stuck in zero-sum conflict.  Instead, the environmental law of stream and wetland protection had been on a decades-long trajectory of improvement.

That trajectory can continue.  I don’t expect the Trump Administration will help; its leaders are screamers, and screamers have no use for narratives of creative compromise or governmental improvement.  But the rest of us do have use for those narratives, particularly when, as is often the case, they are true.  So hopefully cooler heads will eventually prevail, and we will continue finding sensible ways to improve protect our streams and wetlands—and the millions of people who depend upon them.

- Dave Owen

March 2, 2017 | Permalink | Comments (1)

Wednesday, March 1, 2017

Regulatory Paralysis by Preemption: GMO Food Labeling and Potentially More

By: Lesley McAllister

Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true – see 7 U.S.C. § 1639(b)(2)(D) (Jul. 29, 2016).   So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs?

It could be a very long wait. For one thing, the law – the National Bioengineered Food Disclosure Standard – didn’t actually mandate a label that directly states that the food is a GE food. Rather, Congress left open the possibility that USDA allow scannable QR codes (pictured below) instead of on-package labeling as the means of disclosure. Congress charged the USDA with completing a study within one year (i.e. by July 2017) regarding whether QR codes would preclude consumer access to the disclosure (and if so, the agency shall provide “additional and comparable options to access the bioengineering disclosure.”)  As of early January, USDA didn’t have the funds to conduct the study

The Disclosure Standard itself is supposed to be established within two years of the passage of the law. But in Trump’s administration, with its strong anti-regulatory ideology, the best guess is that forward motion will be further delayed.  On the campaign trail in Iowa Trump said he opposed efforts to require mandatory labeling of GE food.  Even though mandatory labeling is now the law of the land, it seems very unlikely that the 90% of Americans who have expressed their interest in labeling will be satisfied any time soon. 

Perhaps most significantly, this federal action (and non-action) on GMO labeling has paralyzed all state labeling for the foreseeable future. The federal law was passed (with the  support of industry) just weeks after Vermont’s law went into effect that required on-package labeling.   The federal law expressly preempted Vermont’s law and other state efforts to require labeling.  Indeed preemption was the raison d’etre for the federal law.   So now, all those consumers are left without any option.  States can’t regulate because they are preempted, and the federal government won’t likely regulate because it doesn’t like regulation (despite the existence of the law).  While the courts could intervene, that possibility is still years away.

Such regulatory paralysis by preemption could become a new strategy for delaying and preventing protective regulations in the future. As some states start acting more aggressively to deal with environmental problems that the federal government is not acting on, Congress could simply pass laws that purport to regulate the matter and expressly preempt the states from doing so.  In reality, however, those laws could be so poorly written or designed (as many pro-labeling advocates argued that this law was) that they will never be effectively implemented or enforced.

Qr code


March 1, 2017 | Permalink | Comments (0)

Wednesday, February 15, 2017

Now, about those other dams...

Orovill_dam_spillway_2017-02-11_16730609_10154430795287449_8360716524217440974_nFor several recent days, the eyes of the nation were on the Oroville Dam in Northern California.  A rainstorm atop heavy snowpack threatened to overfill Lake Oroville, and the outflows began to erode the dam’s primary spillway.  Dam managers switched to a backup spillway, which had never been used, but it, too, began to fail within hours.  That led to the evacuation of 200,000 people, and to the California Department of Water Resource’s Facebook page becoming far more popular than the department has ever wanted it to be.  Thankfully, the erosion in the primary spillway has stabilized, and the threat seems to have abated.

(Image from Wikimedia Commons; William Croyle (California DWR), photographer)

But we should not relax too much, because there are tens of thousands of dams across the nation, and many of them would seem like better disaster candidates than Oroville.  Unlike most dams, Oroville Dam gets a lot of attention; it holds back the key water storage reservoir for California’s State Water Project, which provides water to millions of people in the Los Angeles and San Diego metropolitan areas and to smaller but still substantial numbers of people in the San Francisco Bay area.  For urban water users in California, no other dam is more important—and it also is an important source of agricultural water supplies.  Its continued integrity is worth billions of dollars to water users across the much of the state.  It also is important to the Sacramento metropolitan area, much of which sits on low ground and behind aging levees about seventy-five miles downstream.

Oroville Dam’s operations are also subject to higher-than-normal levels of regulatory oversight.  Because the dam generates hydropower, the state of California needs an operating license from the Federal Energy Regulatory Commission, and FERC licenses periodically come up for renewal.  FERC’s licensing process provides an opportunity for reconsidering—among many other issues—the safety impacts of continued dam operation, and it also provides participation opportunities for many other government agencies, NGOs, and individual members of the public.  Indeed, it was during the most recent relicensing process, in 2005, that environmental groups warned of the scenario that unfolded over the past week.

Those warnings went unheeded, but at least there was a public forum for them to be offered.  That is more than can be said for most of the United States’ dams.  The vast majority of those dams do not generate hydropower and are not subject to FERC regulation.  Regulatory oversight, to the extent it exists, instead comes from state law.  In a recent study, The Nature Conservancy’s Colin Apse and I described what we learned about those state laws (I’ve taken out the footnotes but linked to several source documents):

[I]n most states, a dam, once built, is grandfathered from the requirements of environmental laws.  Many of those dams were constructed before significant environmental laws existed or, at least, before those laws were acknowledged and enforced. The environmental laws of many states therefore have never really applied to most of those states’ dams. Indeed, in many states, the only way environmental laws would be triggered is if a dam owner proposes to do something different with a dam — like, for example, add hydropower capacity or take the dam out.

On paper, state regulation of dam safety is more robust. Most states have safety standards and laws requiring periodic inspection of dams, and safety reviews ought to present opportunities to reexamine the operations or even existence of dams. But on closer examination, those schemes also often appear — in the words of one leading expert — “pitiful.” Maine, for example, has robust requirements for dam inspections but has never adequately funded the inspection program. Texas recently passed legislation exempting many dams from its inspection program, and Texas law, at least as currently interpreted, also limits the public’s ability to even access information about dam hazards. Many other states face similar circumstances. Dams do age and fail, but because of these oversight gaps, smaller dam owners in many states are all but legally invisible so long as nothing goes drastically wrong. Indeed, there are thousands of state-regulated dams whose owners aren’t even known.

To make matters worse, most dams lack the kind of constituency that the Oroville Dam has.  Many dams produce little economic value, and unless people downstream realize the safety risks the dams pose, no one is likely to demand, let alone offer money for, their continued maintenance and upkeep.  For the non-negligible percentage of the United States’ dams with unknown ownership, maintenance is particularly unlikely.  State-regulated dams are generally small, while the Oroville Dam is the nation’s tallest, so the risks are of different orders of magnitude.  But that does not mean they are non-existent.  Even small dams can cause big problems.

So what should we do about this situation?  At the Oroville Dam, the solution will likely involving pouring a lot more concrete.  Sometimes that will be the appropriate thing to do.  Indeed, as Colin and I argued, there are places where the most sensible thing to do with a dam will be to fix it up and add some turbines.  But for thousands of dams, a more sensible alternative is removal.  If a dam provides only marginal economic benefits—or no benefit at all—to its owners, causes environmental problems, and is a safety risk, it ought to come out.  Similarly, states ought to take a much closer look at their dam safety programs.  If a closely-watched dam like Oroville can turn into a menace, it’s concerning to think about all the aging infrastructure that no one is watching.

People often think of dam removal primarily as a method of environmental restoration, and dam removals are indeed an effective way to restore damaged environments.  But taking out dams, as well as reinvesting in the ones that remain, also can be a good way to keep people safe.

- Dave Owen

February 15, 2017 | Permalink | Comments (0)

Wednesday, February 8, 2017

"2-for-1" Marketing Ploy is Bad Policy

By: Lesley McAllister

I’ve been thinking about the ridiculous Executive Order, signed last week, calling for two regulations to be “identified for elimination” for every new one proposed.  Trump's so-called "2-for-1" EO.  Amidst all the other horrible news (e.g., the DeVos and Sessions confirmation hearings), it hasn’t gotten as much publicity and criticism as it deserves. 

Federal regulations pass though many steps before they are promulgated. One of the most time-consuming and sometimes contentious is a cost-benefit analysis.  It is time-consuming because it is complicated – imagine trying to put a dollar value on all the costs and all the benefits of a new traffic safety or air pollution rule. Now that such analyses have been required for so many years, we have experts in the agencies and in the White House (specifically in the WH Office of Management and Budget’s Office of Regulatory Analysis, OIRA) who do all this work.  But it is often contentious because it’s not straightforward how to monetize the value of an avoided traffic accident or a asthma-free childhood.  And, importantly, for a regulation to make it into the Code of Federal Regulations, generally its benefits must be deemed to outweigh its costs.

So, when you revoke that regulation, you are losing all those benefits, not to mention the time and energy (of agency staff, of advocates, and others) that went into putting the regulation in place. And I don’t think there are a lot of costly, dumb regulations just waiting for elimination.  Obama and prior presidents were also sensitive to the issue of regulatory costs, and an Obama issued an Executive Order in 2011 that required agencies to review existing regulations to determine if they need modification or repeal.  My guess is that there’s not much deadwood left. 

The bottom line here is that Trump’s EO doesn’t just mimic a marketing ploy, it IS a marketing ploy. It sells the idea that there’s too much regulation and that regulation doesn’t provide benefits. In fact, the reality is the reverse.  Regulations protect our environment, economy, health and safety, and general welfare.  Trump wants to take away the benefits we get from protective regulation, and prevent new regulations that would further benefit and protect us -- from climate change, financial downturns, and many other pressing problems on the horizon. It's a marketing ploy. Don't buy it!

February 8, 2017 | Permalink | Comments (1)

Monday, February 6, 2017

Lesley McAllister, David Takacs, and some Moments to Celebrate

For the most part, the past few weeks have not been uplifting.  But I’ve been to a few inspiring events, both involving my fellow professors.

The first was a festschrift for Lesley McAllister, a law professor at UC Davis and one of the key players in the revival, several years ago, of this blog.  Lesley is battling cancer, and her prognosis is not good.  Those are dark circumstances, but the event was a celebration of life.  Hearing about everything Lesley has done for her students, her colleagues, and for our understanding of environmental law—and hearing about her hope to keep doing that work in the time she has left—was a reminder of how much it can mean to live.

The second was a ceremony for my colleague David Takacs, who just received UC Hastings’ most prestigious award for his teaching.  The award was well earned.  David pours everything he has into teaching, and the results—including a standing-room-only crowd of students and alums at the event ceremony—are palpable.  If you’re interested, you can read more about the event here.

Amid all the dark headlines, I’m grateful to David and to Lesley for reminding us how much our daily work can mean.

- Dave Owen

February 6, 2017 | Permalink | Comments (2)

Wednesday, February 1, 2017

"Environmental Policy 101" for Trump Nominee Pruitt

By:  Lesley McAllister

I was very glad to see the news today that Democratic senators boycotted the confirmation hearing of Scott Pruitt, the OK Attorney General nominated to lead the EPA.  When I watched part of his January 18th hearing online, I found myself wondering why we bother. Republicans have the votes to confirm anyone they want, and evasive answers are often easy to give, so what’s the use?

Now it occurs to me that, even if they don't ultimately block the confirmation, the hearings serve the purpose of jolting the nominee out of her/his bubble and making her/him realize that there are a lot of voices that s/he will need to listen to that s/he probably hasn’t been paying any attention to.  In other words, the purpose is to educate. A guy like Pruitt has only dealt with environmental issues in an ideological way – one of the pack of Republican attorney generals that fought selected Obama initiatives on the grounds of federalism or simple anti-regulatory zeal.  He has never had to really think about why we need environmental laws and how to implement them effectively.

So that hearing might be considered "Environmental Policy 101."  Happily, it was seven hours long, a sign (I think) of how much Pruitt needs to learn.  But, it seems that he didn't pass the test.   On Monday, Democratic senators on the Senate Committee and Public Works requested postponement of today's hearing due to Pruitt's lack of substantive responses to some questions, particularly regarding various conflicts of interest arising from his past record of suits against EPA regulations and his ties to the fossil fuel industry.  Democrats are understandably concerned that he will fail to learn the most important lesson of all, that his new job would be to support EPA's mission of environmental protection, not to undermine and weaken the agency as he has in the past. 

So, "Environmental Policy 101" continues, hopefully until Democratic senators are satisfied.  But Republican senators will probably find a way to give Pruitt a pass, as they did today for Trump's nominees to lead Treasury and Health and Human Services: a surprise meeting to suspend committee rules and vote without the Democrats.   Well, I hope Pruitt at least got a glimpse of the vast terrain of environmental policy that he is likely to be in charge of soon.  Soon, it seems, the task of educating him will fall to all of us!

February 1, 2017 | Permalink | Comments (0)

Thursday, January 26, 2017

What will Trump do to the EPA?

By Lesley K. McAllister

I’m starting to think that the years I have spent studying environmental agencies in Latin American countries might come in handy. I spent about a year in Brazil in the early 2000, where I got to know several governmental environmental agencies.  I interned with two state environmental agencies: CETESB in the industrialized state of Sao Paulo, and SECTAM, in the Amazonian state of Para.  Along with an environmental agency in each of Brazil’s 28 states, there is also IBAMA, the federal agency.  As you can see, this sounds familiar. 

CETESB gained institutional strength in the early 90s, when Brazil realized that its largest industrial area (located in the most industrialized state, of course) was a big polluted mess. CETESB staffed up to about three thousand employees and took a lot of lessons from the US EPA. It successfully established a pollution permitting systems backed up by inspections and enforcement, and by the early 2000s had become a pretty functional agency, looked to as a model by many developing countries.   SECTAM was a much more typical state agency, vastly underresourced and understaffed - 117 employees to deal with environmental protection throughout Para, which is 2.5 times the size of California. The federal agency, IBAMA, had about 5,000 employees total, and was generally perceived as weak and riddled with corruption.

In other words, CESTEB had developed some “capacity,” whereas SECTAM and IBAMA had not. Not that CETESB was perfect, but it had a degree of competence in both the administrative and technical aspects of environmental protection. I could talk to its inspectors about how they did inspections – because they were equipped enough to do them.  I could talk to its department chiefs about certain policies – because they were equipped enough to develop policies.  In contrast, when I talked to people from SECTAM and even IBAMA, there seemed to be much less to talk about.  Lacking resources, the agencies simply didn’t do as much.  And, in addition to lacking capacity, the lacked independence or “autonomy.”  Agencies with little autonomy are dominated  and steamrolled by the executive power (governor or president)  who almost invariably favors economic development interests.

I recently returned to Brazil.  There have been some good changes in the 2000s. IBAMA hired a lot of  people and it became a functional agency, with more capacity and autonomy.  Para’s state agency, SECTAM, changed its name to SEMAS, and has experienced some increase in capacity. CETESB has continued being CETESB – not perfect, of course, but still made up of a critical mass of knowledgeable and competent people trying to do the work of environmental protection.

And now to bring it all home: I saw a headline this morning announcing that Trump’s advisors recommend steep cuts in the EPA's staffing levels – reducing the workforce from about 15,000 people to 5,000 people. It is easy to see that the Administration has it in for the EPA, what with the gag order that was imposed to prohibit employees from talking with the press or public and the nomination of Scott Pruitt for the top job of Administrator.  Pruitt's most notable environmentally-related deeds as Oklahoma’s Attorney General include establishing a “federalism unit” to fight Obama regulations and suing the EPA multiple times.  

It should be clear what can happen here, because it happens all over the world. Our environmental agencies can be made to lack capacity and autonomy – and then they won’t work.   And let us not forget: they have been functional agencies that have worked well.  This is not the place to recount the many achievements of EPA's work implementing our federal environmental laws over the past 4 decades, but the benefits to our health and welfare FAR outweigh the costs.

January 26, 2017 | Permalink | Comments (0)

Wednesday, January 25, 2017

Hello again (and a reminder to donate to environmental advocacy groups)!

By: Lesley K. McAllister, UC Davis School of Law

Hello! It’s been a while since I blogged here at Environmental Law Prof Blog, and I feel that I am now being called back to it. I, like many environmental law aficionados, am very worried about how the new administration will work against environmental protection. I have lots of reasons to just check out and be quiet about it. The biggest one is that I probably don’t have long to live. I was diagnosed with stage IV lung cancer over three years ago. Aggressive treatment has slowed its course, but the cancer is widely-diffused in my body, and I’ve heard that that means it will kill me.

I have been a “member-scholar” of the Center for Progressive Reform (CPR) for about eight years. Over fifteen years ago, soon after George Bush’s administration began, Professors Rena Steinzor (University of Maryland School of Law), Tom McGarity (University of Texas School of Law), and Sid Shapiro (Wake Forest University School of Law) founded CPR. They did so because they and others in the public interest community perceived a need for a progressive think-tank to focus on environmental, health and safety, and consumer protection. At that time, like today, the White House and both chambers of Congress were controlled by the Republican Party.  Then, like today, they knew they were going to see serious and multifarious attempts to undermine our environmental laws, with the assistance of well-funded think tanks like the Heritage Foundation and the Cato Institute.

CPR’s founders aspired to assemble and mobilize voices from legal academia to inform policymakers and the public of the critical importance of effective protective regulation.   As a collective of working scholars joining together to participate in the public debate, CPR is as independent of politics as an organization can be. CPR doesn’t adopt institutional positions on issues, but rather encourages scholars to speak out themselves. 

Since its founding, CPR has consistently aired perspectives and knowledge timed to counter countless anti-regulatory initiatives through op-eds, reports, news alerts, CPRBlog, and various other means. CPR scholars are often invited to give Congressional testimony because of their expertise and independence. Areas of focus have included climate change, food and drug safety, good government, and many others.

But CPR hasn’t yet worked itself out of a job. It now has over 50 member-scholars, and its mission is more relevant and important than ever. Visit if you’d like to support CPR and enable more CPR work to make it into our public policy debates (please see the top right hand corner “DONATE” in small letters). I can assure you that CPR uses every dollar to maximum impact. (Of course, there are other great environmental organizations to donate too, and if you have a different favorite, then donate to them!).  

With this post, I pledge to try to use some of the good time and energy I have left to blog about why we need laws and regulations that protect us, how protective laws and regulations are now under attack, and what we can do about it.

January 25, 2017 | Permalink

Tuesday, December 20, 2016

ELC Essay #13: Juliana v. United States and our Zero-Sum Climate System

By Melissa Powers

On November 10, 2016, federal district court Judge Ann Aiken issued an astonishing decision in the atmospheric trust climate case, Juliana v. United States. The decision holds that the plaintiffs in the case, who include children and young adults ranging from 9 to 21 years old, have a fundamental right “to a climate system capable of sustaining human life.” The decision further recognizes that the federal government has a public trust obligation to protect resources from the consequences of climate change, including ocean acidification and sea level rise. As a result of this decision, the plaintiffs will now be able to go to trial to prove, among other things,

that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.

If the plaintiffs succeed at trial—as I believe they should—the case should then proceed to the relief stage. Plaintiffs have asked the court to order the federal government to protect the plaintiffs’ fundamental rights and to ensure protection of the trust assets by developing a plan to reduce greenhouse gas emissions. Although resolution of the case could take years, and will almost certainly involve appeals to the Ninth Circuit and Supreme Court, the Juliana decision is already a landmark decision. In the context of this blog series, moreover, the Juliana decision illustrates how and when zero-sum framing is a useful environmental and moral device.

Continue reading

December 20, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

ELC #12: Deconstructing Zero Sum Environmental Games: Bears Ears National Monument as Reparations and Reconciliation

By Sarah Krakoff

Owls versus jobs. Water for farmers versus water for salmon. Big dam versus tiny fish. Environmental disputes are often described in this way, as contests over limited resources that require one side to lose in order for the other to win. Many environmental conflicts may not be zero-sum games according to technical game theoretic definitions, but characterizing them in this way has traction with the media, the public, and the parties themselves. The zero-sum description frames our debates, often hardening positions and limiting the range of options, both practically and conceptually. Indeed, “I win, you lose” views of the world seem to be corroding every aspect of our public and private lives.

Rather than tinker from within this frame, what if we pulled back the lens and viewed natural resource conflicts in their historical and social contexts? Owls-versus-jobs is the snapshot. The long view would describe how federal forest service policies subsidized unsustainable logging, resulting in undiversified and therefore fragile economies. It would also include how efforts to undermine labor organizing in the Pacific Northwest prevented alliances between environmentalists and loggers. Another part of the story would acknowledge that limitations in federal environmental laws lead to over-reliance on single species strategies. The longer view is harder to describe in a bumper sticker. But excavating the historical forces that lead to particular environmental disputes may help us move beyond pat and unhelpful dichotomies. In the heat of the conflict, it may feel like owls are the opposite of jobs, but reifying that feeling is neither historically accurate nor normatively attractive. Who wants to live in a world where we have to choose between those two?

Continue reading

December 19, 2016 | Permalink

Friday, December 16, 2016

ELC Essay #11: Less than Zero: The Zero-Sum Game that Hurts Local Communities & Ecologies

Jonathan Rosenbloom

Local communities and their ecology suffer hardship from a zero-sum game over governance authority. This game pits communities (and their local governments, including special purpose districts) against state governments in a constant and unwinnable(ish) conflict over the authority to regulate (or, often, not regulate). Although this zero-sum game is a struggle between states and communities over the authority to regulate, the manner in which it is skewed against local communities has dire consequences on the environment and discourages local communities from protecting and investing in their local ecology.

In our federalist form of government, states hold plenary power. Since the mid-nineteenth century, most courts have held that local governments are creatures of and subject to the whim of state legislatures. Two limitations on state legislative control over local communities are state constitutions (see, e.g., Robinson Township v. Commonwealth (holding state’s attempt to preempt local government regulation of fracking was in violation of state constitution)) and state statutes (see, e.g., Virginia Code § 15.2-2280 (authorizing local communities to regulate land uses)).

State and local governments frequently exercise regulatory authority over critical environmental issues, such as those related to fracking, waste management, and water. As a legal matter, local authority to intervene in potentially controversial activities may turn on whether that authority has been preempted by the state or even the federal government. While the preemption analysis varies by state, it typically prohibits local governments from regulating: (1) where the state expressly preempts local action; (2) where the state heavily regulates the field (but does not expressly preempt); and (3) where there is a direct conflict between the state and local regulation (again, in lieu of express preemption).

Continue reading

December 16, 2016 | Permalink

Thursday, December 15, 2016

ELC Essay #10: Questioning the Value of Solar

Shalanda H. Baker

At last, energy—that elusive thing that exists all around us, sustains myriad plant and animal life, and illuminates our homes—no longer requires massive infrastructure to be harnessed and converted into electricity. Technology now allows individuals and communities to erect solar panels that convert the sun’s rays into electric currents to power homes, hospitals and community centers. This rare moment in the transition of the energy sector from a system in which electricity is generated by burning fossil-fuels in centralized locations managed by public utilities, to a system where a range of electricity generation and management alternatives exists, has spurred a heightened level of regulatory and economic turmoil in jurisdictions around the United States. The disequilibrium created by customer-sited energy generation threatens to destabilize and reinvent our energy system. If only we would let it.

Industry observers attribute the swift rise of rooftop solar adoption over the past decade to progressive policies and rapid technological advancements. Tax incentives have effectively decreased the cost of owning and installing solar panels. Net energy metering policies pay rooftop solar owners at the customer’s retail electricity rate for each kilowatt-hour of electricity generated by the customer. These programs leave some customers with electricity bills totaling zero dollars, effectively turning their electricity meters backwards when solar panels are fully engaged.  

This dramatic increase in customer-sited distributed energy generation has challenged the utility sector and destabilized the so-called “regulatory compact,” whereby utilities receive a regulated reasonable return on electricity infrastructure investments in exchange for providing electricity. The overall dynamic confronting utilities in this transitional moment has led to what some have termed the “utility death spiral.” In the new, distributed-energy paradigm, utilities can no longer rely on the prior revenue levels from their customer bases to recover costs for infrastructure improvements or to recoup their regulated reasonable return on such investments. Further, in an era of increased distributed energy generation, utilities cannot easily predict what types of infrastructure investments are needed. Thus, they face a “death spiral,” a term that reflects an operating environment with rife economic uncertainty.

Continue reading

December 15, 2016 | Permalink

Wednesday, December 14, 2016

ELC Essay #9: Energy Policy: No Place for Zero-Sum Thinking

By Inara Scott

The popular notion of a zero-sum game is a scenario in which, for one party to gain value, another party must lose it. We can imagine a pie cut into six pieces, with six people standing beside it. For any one individual to get two pieces means someone else must go hungry. One of the key assumptions here, of course, is that the number of slices of pie is fixed. We can’t add to the pie.

Any simplistic metaphor is certain to break down under scrutiny, but in the energy context, this image is particularly inapt. In December 2005, natural gas was trading around $15.39/MMBtu. Today, the price is closer to $2.90. The reason for this precipitous drop? New techniques in fracking and horizontal drilling in shale rock, which allowed developers to shake loose massive stores of natural gas that had previously been inaccessible. The pie suddenly got a whole lot bigger.

Improvements in materials and efficiency have also drastically lowered the cost of renewable energy generation—so much so that current cost projections for 2020 are half what they were about a decade ago. The cost of wind energy alone fell almost 60% from 2009-2015. If we think of the pie as the amount of renewable energy we can generate per dollar, there can be no doubt it continues to grow.

Continue reading

December 14, 2016 | Permalink | Comments (1)

Monday, December 12, 2016

ELC Essay #8: Making Economic Development and Job Creation Drivers of Serious Action on Climate Change and Environmental Protection

by John C. Dernbach

We’re fighting for policy changes that will make it possible for us to have better choices; utilities that offer us renewable options, electric trains that make short-haul flights obsolete, public transit. Exxon and its ilk have been fighting for decades to keep these choices out of our reach, and then claim that we are voting with our dollars every time we sit in traffic or heat our homes with fossil fuels supplied by a utility that has a monopoly. They can play gotcha as much as they want, but all it proves is how badly we need better options.

                        Bill McKibben

One of the most longstanding narratives in environmental law and politics is the alleged necessity of choosing between development and environment. The narrative persists in industrial projects, dams, mines, shale-gas development, highways, construction projects, and in a variety of other projects and activities. As Bill McKibben points out, it also persists in the debate about what to do about climate change. In every case, some people win, and some people lose. The narrative, based on conventional development, has a built-in zero-sum game—development or environment. 

A competing narrative, which has been slowly gaining supporters over several decades, is built on the idea of sustainable development—development and environment.  When there are attractive ways of making environmental protection and economic development mutually reinforcing, there is a way of escaping the zero-sum framing of environmental issues, including climate change.  As Bill McKibben says, people want better choices. 

Continue reading

December 12, 2016 | Permalink

Friday, December 9, 2016

ELC Essay #7: Zero Sum Games in Pollution Control: The Games We Create versus the Games We Discover

by Robin Kundis Craig

Environmental pollution lands us in zero-sum games. The more interesting question is: Do we discover these games? Or do we invent them? In other words, are there hard environmental limits on how much anthropogenic pollution natural systems can absorb, which we eventually discover? Or do we create zero-sum games for pollution purely as a result of our own goals for both ecosystems and social-ecological systems (SESs, a recognition that human societies are both part of and depend upon functioning ecosystems)? In fact, we do both, and the intersection of the two in a climate change era is worth examination.

There is no doubt that natural systems respond to, and can be altered by, human pollution, and at all sorts of scales. The emerging discipline of resilience theory posits that ecosystems can exist in alternative stable states and that they transform from one state to another by crossing an ecological threshold. While resilience theory imposes no normative value on these alternative states, as a pragmatic matter humans tend to find one state more desirable than the others. Relatedly, and importantly, crossing an ecological threshold in one direction is often easier than reversing the process. Thus, when ecosystems are in human-desired states, keeping that system from crossing an ecological threshold in the first place is often far less costly than trying to restore the ecosystem afterwards. As a result, identifying ecological thresholds and the most desirable of alternative states can help to inform legal and policy goals.

Continue reading

December 9, 2016 | Permalink

Thursday, December 8, 2016

ELC Essay #6: Zero-Sum Environmental Governance

By Shannon Roesler

The political climate that facilitated the passage of major pollution-control statutes, such as the Clean Air Act (CAA) and the Clean Water Act (CWA), may seem difficult to imagine today. When Congress passed the major pollution-control laws in the 1970s, it was responding to a growing consensus that federal environmental regulations were essential to protection of human health and the environment. In their absence, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations in an effort to attract industry and economic growth. Policymakers also recognized that environmental pollution increasingly presented problems of scale; pollutants emitted into the air and discharged into water bodies did not always remain within the political borders of a state. A federal role was perceived as a necessary means to ensure the efficient regulation of interstate pollution.

Today, political support for new environmental regulations at the federal level appears less uniform, particularly given the resistance to federal regulation by a sizeable number of states. Along with industry, states now routinely file lawsuits challenging new environmental regulations as abuses of federal power. Instead of thinking seriously about shared governance, the political default in many states is to litigate with the hope of invalidating the federal rule. This turns environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if it stands, the state loses. When states treat environmental governance as a zero-sum game, they preclude the consideration of win-win scenarios. Along the way, time, effort, and money are wasted in protracted legal battles that delay important protections for human health and the environment.

Continue reading

December 8, 2016 | Permalink | Comments (0)

Wednesday, December 7, 2016

ELC Essay #5: Beyond Zero-Sum Thinking for Environmental Law

by Keith Hirokawa

The issue addressed by this meeting of the Environmental Law Collaborative—zero-sum thinking and its application to environmental law—questions whether environmental quality is appropriately characterized as a zero-sum game in which regulation is an expensive, job-destroying monster. Describing a choice as a zero-sum game can be insightful for understanding the architecture of choice in a battle of particular circumstances. The notion of the zero-sum game comes from game theory and describes an “I win, you lose” (or vice versa) situation in which the amount you lose is proportional to my gains in winning. The game provides insights into how particular resolutions may have been predictable or even beneficial under the circumstances. However, when posed as a zero sum-game, environmental quality appears too costly: every dollar spent on the environment takes food from the table of some employee.

Aside from the problem that the zero-sum characterization is seldom, if ever, an accurate description of environmental regulation, this zero-sum framing presumes that environmental values are somehow divorced from economic livelihoods.

Continue reading

December 7, 2016 | Permalink

Tuesday, December 6, 2016

ELC Essay #4: Deep Equity, Zero Sum Environmentalism, and a Sustainable Planet

By David Takacs

As humans appropriate ever more of the planet’s bounty, leaving less for nonhuman species and the ecosystems they inhabit, conflicts emerge over who or what gets which resources. Such skirmishes result in some of the unproductive zero-sum framings we too often see. 

These zero-sum skirmishes extend to what are the appropriate frames through which to view the natural world, and thus how we set priorities to manage that world. Are ecosystems gardens to be cultivated and manipulated for human needs?  Or are they wildernesses imbued with intrinsic value, whose species are valuable for their own sake, to be managed for continued ecological function and evolutionary potential?

In three of my research arenas, promoters of new conservation strategies split the difference, modulating between nature as sacred and nature as profane. In all cases, these three multifaceted approaches to solving problems serve as counter-narratives to win-lose, zero-sum environmentalism.

Public funders and private investors are pouring billions of dollars into Reducing Emissions from Deforestation and Forest Degradation (REDD+) in the developing world. In REDD+, investors pay people to preserve carbon in trees, and then sell credits based on the stored carbon to those who wish to offset their own greenhouse gas emissions. In biodiversity offsetting, rapidly gaining currency as a tool that (potentially) promotes prudent economic and ecological planning, developers degrade biodiversity in one place in exchange for paying to protect it elsewhere. The South Africa government is managing water as ecological infrastructure in its attempt to fulfill the Constitutionally guaranteed right to safe, clean drinking water.  Focusing on the 8% of the nation’s land that provides the source for 50% of its water  policy makers plan simultaneously to create more and cleaner water, augment local ecosystem services, protect nonhuman species, and create jobs for poor people in rural areas. Each of these examples presents non-zero sum solutions to environmental problems and broadens the way we frame the problems in the first place.

Continue reading

December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Call for Presentations (SCALE conference) and Papers (Morrison Prize)

Call for Presentation and Panel Proposals for its Third Annual Sustainability Conference of American Legal Educators.  This conference will be held on May 12, 2017, at ASU’s new law school building in downtown Phoenix, AZ.  Roughly 50 faculty speakers from throughout North America will be selected to speak at the conference, and their airfare (up to $500) and lodging are covered by ASU.    

Here’s a link with more information about it:   Carol Rose will be this year’s keynote speaker

In connection with the conference, there’s also a $10,000 prize contest for recent sustainability-related law journal articles that are ALREADY WRITTEN!  Entrants must merely send five offprints of their article and a cover letter to the address in the Call for Entries.  Here’s a link to that, too:

December 5, 2016 | Permalink

Call for Presentations/Paper: Climate Law and Policy Conference in Buffalo

The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017

Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.  

Speakers are invited to discuss climate change law on all themes and content areas. Articles will be published in the Buffalo Environmental Law Journal's summer issue. Some suggestions for panel topics include -- 

Natural resource security

Alternative energy 

Climate change and endangered species 

Air and water quality

National and international security

Land use 

Human rights and environmental refugees

Environmental Justice and climate change

International agreements

Comparative climate change law

Climate change tax and finance

To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to by 5pm EST on December 16, 2016. 


Posted by Jessie Owley

December 5, 2016 | Permalink