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.

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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.

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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.

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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.

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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

Dakota Access – Three Things to Watch in the Coming Weeks

Yesterday, the Army Corps of Engineers issued a statement that it would “not grant an easement” for the Dakota Access Pipeline (DAPL) to cross Lake Oahe “at the proposed location” (within half a mile of the Standing Rock Sioux Reservation) “based on the current record.”  The Army Corps instead will conduct a further evaluation of the pipeline route under NEPA implementing regulations, including a “robust consideration and discussion of alternative locations” for the crossing.  The DAPL, which is 99% complete, would bring half a million barrels of oil per day past the Standing Rock Sioux Reservation en route from the Bakken oil fields of northern North Dakota to refineries located in Illinois.  While opponents of the pipeline are celebrating the Corps’ decision as a victory for the tribe and for Lake Oahe, there may be more to this story in the coming weeks.  Three things to watch:

1. The Litigation –Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers is the tribe’s suit seeking to enjoin construction of the DAPL under the Rivers and Harbors Act, the National Historic Preservation Act, and the Clean Water Act. After the district court ruled that the Corps satisfied its tribal consultation obligations under these three statutes (and CEQ guidance on the administration of federal statutes impacting tribal affairs), the tribe appealed and the D.C. Circuit halted construction temporarily to consider the consultation issue.  The D.C. Circuit later lifted the stay, allowing construction to proceed, and is currently considering the merits of the consultation issue.  The merits briefs are due in the next several weeks, but given the Corps’ statement yesterday, the tribe has filed a motion to dismiss this appeal as moot, which is unopposed.  Therefore, this appeal’s days are numbered.   However, this litigation did not involve the easement required to cross under Lake Oahe pursuant to the Mineral Leasing Act (MLA), which is the final federal approval that Dakota Access needed to finish the pipeline.  If the result of the new NEPA analysis is that the pipeline should cross in the same location as originally proposed (considering there is another one following roughly the same trajectory under the lake, this is not outside the realm of possibility), the tribe would likely re-file the consultation claims if the Army Corps does not fully engage the tribe in the promised NEPA review (see number 3), along with an appeal of the easement decision.    

2. The Treaty Rights – The Corps’ decision is based in part on the tribe’s “treaty hunting and fishing rights.” It is unclear from the language of the Corps’s statement whether the Corps is reviewing treaty claims to the lake itself or usufructuary rights in the lake, although it is most likely the latter. Under the 1851 Treaty of Fort Laramie, which was the original treaty partitioning the Great Sioux Nation, the tribes (Standing Rock Sioux among them) retained off-reservation hunting and fishing rights in and around the Missouri River, part of which later became Lake Oahe.  In Article V, the Treaty provides that the tribes “do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.”  Unless successive treaties (or legislation) abrogated these off-reservation rights, the Sioux still possess them, and any pipeline completion route could not interfere with the exercise of these rights.  Unraveling this history and mapping the hunting and fishing locales may take the Corps some time, as it will require extensive consultation with the tribes (the Standing Rock Sioux are not the only tribe with usufructory rights in the lake, either, which could complicate this portion of the review).  If the tribes disagree with the Corps’ conclusions on the scope and nature of the treaty rights, that could form the basis for an additional federal claim.

3.The Army Corps under Trump – The Army Corps’ statement yesterday was a policy position, essentially promising further NEPA review of the decision already issued – allowing DAPL to cross at the same location as currently proposed. Indeed, Assistant Secretary Darcy stated that she had concluded that “a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis…” and that she could not give that authorization “based on the current record.”  She did not say that a) she would not grant authorization for the current proposed crossing in the future, based on a more complete record, or b) that there was any solid basis upon which to completely and finally eliminate the current proposed location.  She only stated that the Corps would more thoroughly review “reasonable alternatives”, “spill risk[s] and impacts”, and “treaty rights” to comply with the MLA and NEPA.  Even if the agency completes this review under President-elect Trump (which it might not, given the President-elect’s somewhat freewheeling approach to the rule of law thus far), there is no indication that the Corps will not revert back to the crossing at Lake Oahe, as long as it does not interfere with treaty hunting and fishing rights.

- Hillary Hoffmann

December 5, 2016 | Permalink | Comments (0)

ELC Essay #3: Strategies for Zero Sum Challenges

By Jim Salzman

Politicians love to talk about the glossy world of “Win-Win Scenarios.” Battling climate change will also grow the renewables sector and create thousands of green jobs. Catch shares programs will increase the fishing community’s incomes and also conserve fisheries. Energy conservation saves fuel bills and drives efficiency improvements. Famed Harvard Business School professor, Michael Porter, has even hypothesized that countries with stricter environmental regulations are more competitive in the global marketplace.

To be sure, there are plenty of examples of win-win scenarios in the environmental field, but it’s wishful thinking to assume that many, much less most, environmental conflicts can be solved with all parties better off. It is often that case that one or more parties feel trapped in a zero-sum game. Farmers in the Klamath Valley see their irrigation water allocation reduced because the endangered salmon need more. Fish win. Farmers lose. In the 1990s spotted owl saga in the Pacific Northwest, logging companies lost access to old growth redwood stands that were deemed to be critical habitat for the endangered owl. Owls win. Loggers lose. One could easily provide similar examples in the pollution context.

Most environmental policies have winners and losers. One might argue that these policies benefit society overall, but it sure doesn’t feel like a benefit to the local resource-dependent communities. These are decisions with diffuse winners and locally concentrated losers. To them, they are trapped in a zero-sum conflict where they need to stand their ground against opposing interests who would have them reduce their emissions, water usage, or timber harvest. "Either I win and continue the status quo, or they win and I have to pay, or perhaps even go out of business."

Given the ubiquity of such zero-sum framing, it shouldn’t be surprising that environmental law has developed a range of strategies to address them. They fall under three basic categories: screw them, grow the pie, or regulatory steam valves.

  • The first category, Screw Them, recognizes the zero-sum game for what it is and lets the consequences flow. Put another way, there are some activities or actors that should lose out. This is a normative position, of course, that favors certain results over others. Companies that discharge dangerous toxics into a local stream should be forced to stop, even if it does hurt their bottom line. In the zero-sum conflict of continuing polluting versus safe waters, safe waters should win. This may seem a satisfying strategy, but keep in mind that the measure of “unacceptable” behaviors varies according to the observer. Conservation interests may well view overgrazing on public lands as a travesty that has gone on for far too long. Ranching interests take the opposite view. Which will win out in a zero-sum conflict of grazing versus range conservation? That depends on which administration is running BLM. A strategy that assumes the losers in zero-sum conflicts deserve to lose looks great if your team is in power. It can seem punitive or worse if you are on the losing side. No wonder, then, that this strategy leads to protracted litigation, overblown rhetoric, and, in the extreme, armed standoffs such as the one that occurred at the Malheur Wildlife Refuge.
  • A second category seeks to Grow the Pie. What looks like a zero-sum game with only eight slices of pie to go around morphs into a win-win scenario if suddenly the pie is enlarged with four more pieces to go around because the government pays off the losers. We generally see this approach where the potentially losing party is politically powerful. As J.B. Ruhl has documented, agricultural interests are more often paid to protect the environment than required to do so. Some fisheries facing restrictions have benefited from vessel buyback programs. The farmers and fishers may be losing, in the sense their actions are restricted, but at least they are being paid for the sacrifice. Similarly, the 1990 Clean Air Act Amendments explicitly sought to compensate coal mining communities for the expected losses in jobs digging high-sulfur Appalachian coal. Growing the pie can be a popular strategy for the parties involved, but not so attractive to taxpayers and those concerned over budget deficits. If regulation proves politically infeasible, however, then growing the pie may be palatable. Even here, though, the parties may not all be happy. Penn Central was certainly not content to receive Tradable Development Rights for Grand Central Station in place of its lost air rights, nor do some environmental groups approve of paying farmers not to pollute.

The third category presents the Regulatory Flexibility of growing the pie. Here, the losers are paid off through regulatory paths rather than through dollars. This is evident in the Clean Water Act’s 404 permit program for wetlands. On its face, the program seems to prohibit dredging and filling wetlands under a wide range of circumstances. In practice, wetlands mitigation banking acts as a political steam valve, allowing much development to proceed by compensating with constructed wetlands somewhere else. We see a similar dynamic with habitat conservation plans. Developers who would have perceived the lack of a permit as a zero-sum dynamic—local economic growth versus a wetland or endangered fly—instead see, if not a win-win dynamic, at least a situation where the costs of doing business are acceptable and the project goes forward. Similar to growing the pie, regulatory steam valves tend to be put in place when the losers are politically powerful and regulating them runs either legal or political risks.

None of these strategies is necessarily better than the other. The relative merits of Screw Them, Grow the Pie, and Regulatory Flexibility will vary depending on the politics of the actors, the nature of the harm, and the public funds available. The key point is that zero-sum games need to pay special attention to the losers, whether they warrant compensation and, if so, what type of benefit is most appropriate.

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

ELC Essay #2: Seeing Past the Zero Sum Game in Environmental Policy – Harder than it Looks

by J.B. Ruhl

In Nonzero: The Logic of Human Destiny, Robert Wright offers a sweeping view of human evolution that culminates in his argument that modern society has become so complex and interconnected that there are no true “zero sum” games to be played between people or institutions. Economists and game theorists use the zero sum game concept to describe a situation in which each participant's gain (or loss) of utility is exactly balanced by the losses (or gains) of the utility of the other participant(s). A zero sum game isn’t necessarily a bad situation—in fact, it’s what economists argue markets and trading should produce. The reason is that if the situation is nonzero sum, then by definition one participant can gain by more than another loses, or even both can gain. That’s why sellers sell products and consumers buy them! The market depends on traders to identify nonzero sum situations and trade away until they reach zero sum, which is what economists refer to as Pareto optimality.

Being in a zero sum game can be a sticky situation, however, if there is some reason why redistribution of the pie is necessary.  If it were just up to the participants in a zero sum game, and assuming they are what economists describe as “rational economic actors,” they would not agree to redistribute the pie unless someone (irrationally) volunteers to be made worse off to make someone else better off. But it is not always up to just the participants. Sometimes government, in pursuit of a desired social policy, intervenes to force a “trade” at least some of the participants would not voluntarily (rationally) make.

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December 2, 2016 | Permalink | Comments (0)

Thursday, December 1, 2016

ELC Essay #1: What We Talk About When We Talk About Zero-Sum Environmentalism

By Jessica Owley

This past summer, a small but hardy group of law professors gathered to discuss the concept of zero-sum environmentalism. In particular, we had set for our agenda to get “beyond” zero-sum environmentalism. The suggestion was that there is a dominant approach to environmental law issues that frames them as zero-sum and that this framing can be damaging to environmental progress. What we grappled with, though, is whether environmental problems really are (at least at times) zero-sum. Is the description of an environmental issue as zero-sum ever accurate? Are laws treating issues as zero-sum when they shouldn’t be doing so? Or maybe ignoring a zero-sum framework that is at play? Perhaps there are no zero-sum environmental dynamics in the real world and instead “zero-sum” is just the language we (or some of us) use to describe environmental tradeoffs. Zero-sum as used in the context of environmental policy implies stark winners and losers. If the environment wins, the economy must lose. To protect the owls, we destroy the lives of the loggers. To prevent global climate change, Americans must completely change life as we know it.

Our discussions revealed (unsurprisingly) that we all came to this question with different examples, assumptions, and solutions. Some people rejected the idea that zero-sum problems ever actually exist and suggested that reliance on the framework and use of the term can be damaging to environmental governance. Not just because it is an overly constrained view of how tradeoffs actually work, but because the language of zero-sum necessarily creates a combative stance that can impede collaboration and creative thinking. Others suggested that for some environmental concerns, the zero-sum framework was actually underused. That is, we might reach better results if we confront the actual tradeoffs. What work does it do to label environmental problems a zero-sum game? In this case, climate change and biodiversity protection served as key examples. Maybe we do need to emphasize that you can’t have your cake and eat it too. Building that hospital will indeed lead to the extinction of a species. Putting the conundrum in stark terms might help highlight the need for embracing the principle of in dubio pro natura (when in doubt act in favor of nature). Most of us agreed, however, that when we see the zero-sum rhetoric or when we use it ourselves, we aren’t really talking the language of economists. We are taking their term and simplifying it (taking a complex topic from another discipline and simplifying it for our use is something we legal academics are good at). But more than that, we realized that we aren’t actually the ones using this term. In fact, it is not heavily used in the legal academy. It is used in the media, though, and by politicians.



This chart shows an increase use of the phrase “zero-sum” in books first appearing around 1940 and increasingly used since then with a tapering off beginning in 2000. However, overall there is not a high frequency of use of the phrase. Zero-sum Environmentalism did not appear often enough to be plotted with google’s ngram function. What would be more interesting is to chart this phrase in speeches, academic publications, and news articles, but well … I don’t know how to do that.

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December 1, 2016 | Permalink | Comments (0)

Environmental Law Collaborative (ELC) Essays on Zero-Sum Environmentalism

This past summer, members of the Environmental Law Collaborative tackled the concept of Zero-Sum Environmentalism. As an initial foray into our experience with the phrase and its implications, we have followed our pattern of earlier sessions and have written initial essays on our view of the topic. We had anticipated beginning to post these essays mid-November (is the Ides of November a thing?). All of these essays were written before the election, some well before the election. With the election, we faced a real conundrum of whether these essays still have value. What needs rethinking here? In particular, many of us now feel that this conversation is actually more urgent than previously contemplated. Indeed, I confess to being one of the authors who perhaps did not take on the task as seriously as I should have. Some authors have responded directly to the election results and others feel that the results only heighten the urgency of the discussion. As always, the ELC essays represent for us an initial foray into a topic area in which we plan to delve deeper. Thus, I hope you read these essays in that light and help us investigate these ideas with active use of the conversation potential of blogs that allows us to comment and respond to each other. We also welcome other essays tackling this same question and I hope to hear from many of you in the coming months.

Sincerely – Jessie Owley

The Environmental Law Collaborative appreciates the support and funding of the Rocky Mountain Mineral Law Foundation. ELC is also now a 501(c)(3)

December 1, 2016 | Permalink

Thursday, November 17, 2016

Bad Public Lands Bills in Congress - H.R. 866 and H.R. 1484

In what is hopefully not an indicator of legislative initiatives under the Trump Administration, the House Natural Resources Committee held a hearing on Tuesday on two public lands bills that would open up virtually all Forest Service and BLM lands (except Wilderness Areas) for oil and gas drilling and remove almost all environmental protections currently governing drilling activity.  The first bill, H.R. 866, The Federal Lands Freedom Act, would transfer oil and gas permitting authority from the federal government to the respective states, in every state containing federal public lands managed by the Forest Service and the Bureau of Land Management.  It would also exempt those decisions from the Administrative Procedures Act (APA), the Endangered Species Act, the National Environmental Policy Act and the National Historic Preservation Act, basically removing all protection for endangered species, public participation in leasing and permitting decisions (in states lacking a state version of the APA), environmental planning, judicial review, and cultural and historic resource protections in any states that do not have equivalent versions of these laws.  The revenue sharing arrangement between the states and the federal government currently allows states to receive 49% of oil and gas leasing revenue from federal lands located within their borders, and this would remain the same under H.R. 866, which will add financial incentives for states to rapidly increase exploration and drilling.  

H.R. 866 imposes no environmental restrictions on state permitting programs, which would simply take over oil and gas leasing upon filing a “declaration” of intent to do so with the Secretary of Interior.  Although this bill threatens the environmental and cultural values of public lands everywhere, it sends a particularly ominous message about the future of National Monuments, National Forests, and Wilderness Study Areas.  Areas like the Grand-Staircase Escalante National Monument, the Colorado National Monument, the White River National Forest (targeted specifically in written testimony supporting the bill filed by the Heritage Foundation), and National Forest lands throughout the Appalachian region would be immediately open for drilling if H.R. 866 were enacted.   

The second bill, H.R. 1484, is a land transfer bill aimed at divesting the federal government of 45 million acres of BLM and National Forest lands in the State of Nevada.  Titled the “Honor the Nevada Enabling Act of 1864 Act,” this is the latest in a series of efforts by western states to seek ownership and control of vast amounts of federal public lands under the theory that Congress promised these lands to the states in the various enabling acts admitting each state into the Union.   Aside from several flaws in the legal arguments supporting these bills, which strain to bend the plain text of the enabling acts and Supreme Court precedent in Pollard v. Hagan and Dred Scott v. Sandford into support for a federal divestiture the likes of which this country has not seen in over a hundred years, many are based on economic studies that lack critical information about how states will manage the immense administrative burdens they would assume if their efforts succeed.  H.R. 1484 in particular cites a legislative task force report commissioned by the Nevada legislature and finalized in 2014, which concludes that the State could assume title and generate net revenue by immediately ramping up oil and gas development to the maximum extent possible, in a model similar to the way school trust lands are managed (to maximize revenue).  Yet, this conclusion is belied by the detail in the report.  For instance, even if all 45 million acres of transferred lands in Nevada were mineral-bearing, which the report concedes is impossible, the State could not shoulder the massive financial expenses associated with fire management and suppression, which is one of the largest current expenditures for the BLM and the Forest Service in the public lands states.  The report concedes that it lacks critical information on fire suppression and other key details.  In short, the numbers don’t add up, at least not as they are presented now.

Entirely missing from the discussion of H.R. 1484 is any explanation of how the state will manage conservation and environmental protection on the 45 million acres of acquired lands.  It is clear that mining and grazing will continue unabated.  The report indicates that recreational uses will be preserved, as will all valid existing rights of way across public lands.  Wilderness Areas, National Parks, National Wildlife Refuges, National Monuments, desert tortoise Areas of Critical Environmental Concern, and Herd Management Areas for Wild Horses and Burros would remain federal and are expressly excluded from H.R. 1484, but National Forests and all BLM lands not expressly exempted would be transferred.  This means that all 60 of the current Wilderness Study Areas in Nevada would be abolished, and 2.5 million acres of currently protected WSAs would likely opened for mineral extraction, grazing, or other uses that would eliminate future Wilderness potential.  The shift in ownership “style” between the federal government and the State of Nevada would be simply devastating for wildlife, watersheds, fragile Great Basin ecosystems, and other environmental values.

Two weeks ago, it would have appeared unlikely that these bills would ever leave committee, but given the recent election results and the huge shake-up in Washington that is sure to come, these bills (and similar efforts in the Senate) may be ones to watch in the coming year.  More information about H.R. 866 and H.R. 1484 can be found here.

Hillary Hoffmann, Vermont Law School

November 17, 2016 | Permalink | Comments (0)

Call for Papers: California Western Law Review Special Issue, "On the Border: A Legal Survey of the Southwest"

A Call for Papers from California Western Law Review:

California Western Law Review is excited to invite submissions for its special spring issue. Entitled On the Border: A Legal Survey of the Southwest, the edition intends to seize upon California Western’s close proximity to the southern border to highlight the myriad legal issues impacting our region.

While we are interested in showcasing new and innovative scholarship on immigration and criminal issues, we also hope to incorporate a more holistic view of the legal terrain of San Diego and the Southwest. Accordingly, we encourage submissions that address environmental and Native American law; legal developments in biotechnology and intellectual property; military and trade issues; and any other topic that might help illuminate the legal dynamism of San Diego and the Southwest.

Submissions from all members of the intellectual community are welcome; our Spring 2017 issue hopes to feature members of the bench, the bar, and the academy.

If you have an article you would like to submit, please email California Western Law Review with a copy of your manuscript and your CV at, with the subject line “Spring 2017 Special Issue.”

If you would like additional information, please do not hesitate to contact Jake Novack, Editor-in-Chief of California Western Law Review, at

November 17, 2016 | Permalink

Thursday, November 10, 2016

Six Thoughts for an Environmental Law Student Wondering what this all Means

As a future environmental attorney, I'm confused and angry and sad. And as a human being, I'm equally as confused and angry and sad. A lot of us students are trying to process all of this today.

That was the beginning of an email that one of my students sent me yesterday.  I think she speaks for a lot of us.  So I thought it might be helpful to share a few thoughts, some but not all of them optimistic, about what we face going forward.  I should say at the outset that I am writing for the benefit of readers who, like me, think environmental protection is important and that climate change and other environmental problems are all too real.

This is going to be a battle.  There have been a few hints of hopeful speculation that perhaps Trump’s tense relationship with mainstream Republicans means he won’t adopt their traditionally anti-environmental positions.  I don’t share much of that hope.  Election Day revealed that other than a few outlying voices in the wilderness like Mitt Romney, the embrace between Trump and conservative Republicans is a big, warm bear hug.  Trump’s transition team selections also suggest that he’s going to be just another far-right conservative, albeit with fewer ideas and a shorter attention span.  And I think those far-right conservatives believe, perhaps with some basis, that loud anti-environmentalism is a key component of the glue that binds their unlikely coalitions together.

We have fought this battle before, and we have won.  Political defeats have a way of feeling new each time.  And this one is new in some ways, but the new elements have more to do with basic common decency than with the environment.  For as long as it has existed, the environmental movement and its predecessors have encountered intense opposition from extractive industries and their political allies.  And it’s often been an uphill fight.  We have lost, over and over again.

But by being persistent, we have also won major and lasting gains.  In most of the United States, air quality is dramatically better now than it was in the 1970s.  It is even more dramatically better than it would have been had we not enacted environmental laws.  Water quality also is greatly improved, though not everywhere, and we just aren’t making toxic waste dumps like we used to.  A few iconic species have been nursed out of threatened or endangered status, and we’ve also kept many, many species from going extinct.  Cities have become more livable, which reduces demand for many resources.  Renewable energy is becoming an increasingly large part of our energy mix.  Per capita water use has been dropping.  And all across the country, there are still beautiful places—some very wild, some urban, and some in between—to go enjoy the outdoors, and to be reminded of why it is so important.

We also have succeeded in building stronger institutions for environmental protection.  Environmental compliance is now baked into the operational cultures of many companies.  Other businesses, like mitigation bankers, manufacturers of pollution control technologies, renewable energy developers, and environmental consultants, use business models that depend upon environmental protection (and put a lot of people to work).  Despite the caricatures of overbearing, insensitive bureaucrats, environmental regulators have gotten much better at finding ways to make genuine environmental protections work for businesses.  There are, of course, some industries whose basic model is opposed to environmental protection, and many of those industries are old enough to have thoroughly insinuated themselves into the political sphere.  But they don’t stand for the economy as a whole.

We have many forums in which to work.  The President is obviously very important to environmental law.  But he isn’t everything.  A lot of good can still come from work at the state and local level.  Direct advocacy toward corporations has sometimes been quite effective, and there is much we could do (like, for example, providing more encouragement to corporations to stop funding industry groups whose real agendas are defined by conservative activists rather than the businesses they ostensibly serve).  And on the greatest environmental challenge of our time—climate change—progress anywhere is progress everywhere.  So we should make gains, and fight losses, on many fronts, and the net result may be positive even if we suffer crushing setbacks in some places.

We have many tools with which to work.  The classic environmental advocacy strategy has been to pass a regulatory statute, which the executive branch then implements.  On the side of land preservation, it’s been to get Congress or the executive to set land aside.  While neither strategy looks quite so promising in the years to come, it’s worth remembering that elements of each have succeeded in every presidential administration in decades.  Even the George W. Bush Administration, never known as a champion of environmental protection, signed strong new fisheries laws, advanced stream and wetland protections, and designated massive areas of the Pacific Ocean as marine sanctuaries.

But the environmental movement has long been creative in finding alternative advocacy strategies, and we can be creative again.  When finding market-oriented regulatory strategies seemed like a way to build coalitions with center-right Republicans, environmentalists embraced economic incentive-based regulation.  If supporting manufacturing and construction goals is a central priority of the new administration, we can do that, too, and it wouldn’t be anything new.  From the Clean Water Act of 1972, which included major funding for wastewater treatment infrastructure, to more recent support for solar and wind construction, the environmental movement has a history of striking alliances with people who want to build things.  There are plenty of opportunities to do more of that.

The American Voters Did Not Repudiate Environmental Protection.  Most voters want environmental protection.  Poll after poll shows that.  Environmental protection may not be a high-salience issue in many places, but this razor-thin election was not a mandate for Donald Trump to begin tearing up our system of environmental law.  Of course, he may act like he has a mandate.  But overreach provides opportunities for responses.

We Have a Powerful Advocate on our Side.  Part of the reason environmentalism was once such a bipartisan issue is that most people derive value from the natural environment.  And that’s true even in—perhaps particularly in—some of the greatest strongholds of Trump support.  Montana and Idaho are spectacular places.  The hills of rural Ohio are beautiful, as are the beaches of the Carolinas and the Gulf Coast.  I spend part of each summer in northern Michigan; it is gorgeous.  And I’m hopeful that the persistent, insistent advocacy of the environment itself will eventually bring people back to the idea that environmental protection is something worth doing—that part of the pride of culture and place that motivates many voters on all sides of the political spectrum means embracing, again, pride in the landscapes within which we live.

You signed up for this.  When you became interested in environmental law, did you think it was going to be an easy field to work in?  I doubt it.  Probably what drew you to the field, at least in part, was your sense that your participation in it would matter, and that wouldn’t be true if victories came easily.  So let’s roll up our sleeves and get to work.  Maybe that means working for an advocacy group.  Maybe it means working with business clients to find new ways to protect the environment and comply with the law while still making money and keeping people employed.  There are so many possible ways to help.  But whatever it means for you, you are needed today, now more than ever.

- Dave Owen

November 10, 2016 | Permalink | Comments (5)

Sunday, August 14, 2016

What Have TMDLs Done?

"TMDLs suck."  At least, that's what a guest speaker told my environmental law class a few years ago.  To be fair, he was just talking about TMDLs for urban stormwater; in that context, the speaker (a municipal stormwater manager and committed environmentalist) saw them as highly ineffective tools.  But I wondered then if the statement might have broader accuracy.

So last year, when the Vermont Journal of Environmental Law asked me to speak at a conference on TMDLs, I decided to look more deeply into the literature on TMDLs and to try to summarize what we know about what they've accomplished.  The results of that inquiry are now available on VJEL's website (as part of a larger volume; I'd add a link but the site seems to be having issues at the moment) and here (as a stand-alone article).  The nutshell summary: there's a lot we don't know, but what we do know is discouraging.  Once upon a time, TMDLs were one of the great hopes of water quality law.  Today, there is very little evidence that they have fulfilled that promise.  And there are reasons--which the article explores in detail--why we shouldn't be surprised at the scant evidence of success.

There are also important caveats to that conclusion, one of which the VJEL volume spends several hundred pages exploring.  At present, the most ambitious TMDL projects in the nation address Chesapeake Bay and Lake Champlain.  The Chesapeake Bay TMDL tends to get more attention, but the Lake Champlain effort seems genuinely promising.  At the symposium, my favorite panel brought David Mears--currently a Vermont Law School professor, but also a recent commissioner of the Vermont Department of Environmental Protection--together with several of his government colleagues to talk about how Vermont was implementing the Lake Champlain TMDL.  It was an inspiring panel, and a good reminder that a TMDL can be an effective way to achieve water quality improvements if it has the support of committed, pragmatic, and smart state officials.  The written VJEL edition provides a similar story in much greater detail.  Unfortunately, however, that circumstance does not seem nearly common enough.

- Dave Owen


August 14, 2016 | Permalink | Comments (0)

Wednesday, August 10, 2016

What Brexit Means for Biofuels, Means for Wood Pellet Markets, Means for Southern U.S. Forests

Southern wood pellet facilities

Great Britain's exit from the European Union ("Brexit") has both impacted economic markets and raised generalized geopolitical concerns. One of those concerns is what will happen to the U.K.'s commitment to addressing climate change. Renewable energy policies are squarely within the center of Britain's climate change commitments. In particular, questions have been raised about what Brexit will mean for biofuel use, such as for wood pellets that have replaced coal in boilers at electricity generating facilities. One such facility is Drax Biomass in England. Drax has made substantial commitments to converting its operations from coal to wood pellet biofuels. While debate rages regarding whether or not wood pellets as a means of generating electricity is a net climate positive, at least in the short term, wood pellets constitute a market that has expanded rapidly in in the southeastern U.S. (as represented in the image at the top of this post). Wood pellet generation in the South has surpassed 10 million annual short tons with more than 6 million short tons of additional capacity under construction. Exports from the US to Europe doubled between 2012 and 2013, and some project that capacity could increase 10-fold by 2020.

Others are not so enthusiastic about wood pellet market development in the South. Concerns range from the effect on southern forests—potentially converted more readily into monoculture plantations devoid of biodiversity and negatively impacting water quality—to concerns that even if wood pellets are "renewable" and "carbon neutral" in the long term, in the short term burning wood pellets for energy may release enough carbon dioxide into the atmosphere to push us past a climate tipping point.

The flip side of this debate, of course, is that southern forests are under increasing forest conversion pressure due primarily to urbanization. The U.S. Forest Service has projected that if trends continue, 13 percent of southern forests may be lost, due primarily to urban development. With fewer pulp and paper markets into which forest owners can inject their timber (pulp and paper has been steadily moving operations overseas), and with increasing forest fragmentation due to family forests being split up via generational transfers, forest owners are looking to convert forests to other uses. Wood pellet markets could provide a tremendous opportunity to incentivize private forest owners to keep their forests forested, or even incentivize non-forest landholders to reforest, leading to a net CO2 sink even while burning wood for energy.

Enter Brexit. Regardless of the debate about whether wood pellet market development is good or bad for southern forests or the climate, the recent English referendum to exit the European Union could have dramatic ramifications for market development. Many of the climate targets the UK maintains were driven largely by European Union goals. But in the wake of Brexit, and in a move that shocked many, the UK government decided to shutter its Department of Energy and Climate Change. The department will be merged into an expanded Department of Business, Energy and Environmental Strategy. Many see the replacement of the word "climate" with the word "business" in the department's title as an ominous sign of England's commitment to the Paris Agreement. In fact there is a high correlation between Brexit supporters and climate change deniers. A new group has even emerged called Clexit (Climate Exit) to push for the UK's withdrawal from the Paris Agreement. 

I've recently discussed the potential effect of Brexit on the southern U.S. wood pellet industry with industry representatives, who take the position that while the UK may have taken cues from the European Union in developing its renewable energy policies, much policy development—and in particular regarding wood pellets—was UK driven. Even so, with shifting political winds giving climate deniers a more robust platform in the UK, even those domestic policies could be called into question. While wood pellets could be viewed favorably as another energy source, it is UK government subsidies (and thus UK citizen tax dollars) that prop up the market. Without those subsidies, coal would be four times cheaper than wood pellets as a means of generating electricity.

The UK's exit from the European Union has other probable ramifications. The UK has been more favorable toward the use of biofuels like wood pellets in its electricity generation sector than have other European countries. By exiting the European Union, the UK has lost much of its ability to influence other European countries in that direction. This could reduce the scope of the wood pellet market globally, which in turn could reduce timber markets in the southeastern U.S. and put southern forests at increased risk of conversion.

As far as immediate harm to wood pellet markets in the South, industry executives believe there will be no direct negative ramifications, at least for now. If the UK chooses to reduce subsidies for the use of wood pellet fuels, then it will certainly make wood pellet mill operation in the US more expensive. Industry representatives say that the key players are well hedged and are locked into long-term contracts. So it seems that at least until those contracts run out, or unless companies go bankrupt by not hedging properly, the southeastern U.S. wood pellet market will remain.

Ultimately, the ramifications of a decision like Brexit are more complex and far-reaching than many of those who voted for it likely understand (see, e.g., "After Brexit Vote, Britain Asks Google: 'What is the EU?'"). The southeastern U.S. could very well see an increased loss of southern forests and associated jobs due to the UK's exit—a result tied directly to the general trend in the U.K. toward a nationalistic voter base that is antagonistic to basic, well-established science. It is a tragic irony—many of those in the southern U.S. whose livelihoods depend on forest product markets also identify with the same nationalistic tendencies and predispositions to rejecting sound science—tendencies and predispositions that result in support of phenomena like Donald Trump's campaign. In doing so, these voters hurt their own economic well-being and place at risk the landscape that makes the southern U.S. the most productive forested region of the world.

- Blake Hudson 

August 10, 2016 | Permalink | Comments (0)

Tuesday, July 26, 2016

Call for Papers: Washington Journal of Environmental Law & Policy (WJELP) Symposium on the Challenges of Earthquakes and Natural Disasters

The Washington Journal of Environmental Law & Policy (WJELP) invites submissions for papers focused on how the legal landscape contends with the challenges of earthquakes and natural disasters. Partnering with the University of Washington’s Environmental Law Program, WJELP will be hosting a symposium on this topic in mid-January 2017. Accepted papers will be featured in a monograph book, and select authors will have the opportunity to present at the symposium.

Submitted papers should relate to the growing need for law and policy addressing earthquakes and natural disaster preparedness and response at various scales. In addition, papers may address other issued surrounding the topic, including liability concerns, land use planning, and regulatory matters. We also welcome proposals for independent symposium speakers.

Preferred submission deadline is November 28, 2016

Please submit articles by email to or through our page on ExpressO.

For WJELP’s publishing criteria, please see our website.

July 26, 2016 | Permalink

Wednesday, June 22, 2016

Federal District Court: Federal Government May Not Regulate Fracking on Federal Lands

In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit from the EPA or a state to ensure that they will not endanger underground drinking water sources.

In 2005, Congress revised the SDWA to provide that the Act excludes non-diesel fracking from the definition of "underground injection" governed by the SDWA. Specifically, the SDWA provided, beginning in 2005: "For purposes of this part, [t]he term 'underground injection'-- . . . excludes . . . the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities" (emphasis added). Thus, as of 2005, the EPA could not regulate fracking under the SDWA. But this SDWA language--language that is only written "for the purposes" of this specific portion of the SDWA--says nothing about the other federal acts under which the EPA may or may not regulate fracturing.  Indeed, this is why the EPA has since been able to issue several fracturing regulations under the Clean Air Act. Moreover, the narrow exemption of fracturing from the SDWA says nothing about how other agencies may regulate fracturing under other acts, such as the Federal Land Policy and Management Act and Mineral Leasing Act, which govern the Bureau of Land Management's review of oil and gas activities on BLM lands. And many of the BLM's current fracking regulations--all of which the court has invalidated through its holding--have nothing to do with underground injection, the topic of the SDWA.  Rather, they address subjects such as requiring oil and gas operators to use tanks, rather than surface pits, to hold fracturing wastes.

The court's determination that Congress under the SDWA has "directly spoken" to the issue of whether the BLM may regulate fracking on federal lands is farfetched and lacks any reasonable legal basis. After all, how can an Act that applies to the EPA, and primarily to underground injection activities on private lands, "directly," or even impliedly, remove the BLM's authority to regulate fracking wastes--and related activities such as the surface handling of fracking wastes--on federal lands? Indeed, in the legislative history of the SDWA, Congress made clear that in passing the Act it did not intend to "limit the authority" of the BLM's predecessor agency.

The court's failure to find any case on point--and its twisting of the meaning of one of my old law review articles to support its Chevron holding--demonstrate the artificial contortions required to reach this poorly-reasoned holding. Indeed, in my article cited by the court, I indicate in a footnote that despite the exemption of fracturing under the SDWA, other federal acts can apply to fracturing. I specifically cite to an Endangered Species Act issue that arose in a BLM approval of a fracturing operation on federal lands, noting that the ESA and Clean Water Act could apply to the review of fracturing operations. Nothing in my 2009 article indicates that the exemption of fracturing from the SDWA, which is administered by the EPA, weakens the federal regulation of fracturing by other agencies under other acts. In Congressional testimony I gave last summer, which highlighted, among other things, state petitioners' misuse of my article in their district court filings, I stated: "[M]y article does not address the separate authority of the BLM to regulate fracturing on federal lands." Unfortunately, the court in both its preliminary injunction and merits opinion largely adopts petitioners' dishonest interpretation and use of my article.  Law review articles can provide useful history and can help illuminate the meaning of statutes and prior court opinions, but courts should not use them in place of direct legal precedent.  Here, it appears that the court could find no legal precedent directly on point and therefore resorted to misinterpreting an old article that I wrote when I was a visiting assistant professor in a two-year (untenured) fellowship position--an article that I have since built upon in much greater detail in more recent and more relevant work.

The court's erroneous determination that a Congressional exemption of one activity from one federal environmental act exempts that activity from all other federal statutes--including statutes that apply to activity on lands owned and managed for the benefit of the public--could have far-reaching consequences.  For example, the Clean Water Act exempts many agricultural and silvicultural (forestry) activities from its provisions. Under the court' s reasoning in the fracking case, this could suggest that the BLM and Forest Service may not review and regulate grazing and logging on federal lands under the Federal Land Policy and Management Act and other acts governing public agencies' management of public lands.

Beyond its core holding that the SDWA clearly and directly prevents the BLM from regulating fracturing on federal lands, the court also suggests that the BLM has not historically regulated fracturing much and therefore should not be able to now--a point largely irrelevant to whether an agency is now authorized to regulate a particular activity.  Even if an agency's historic choice to extensively regulate an activity (or to not regulate this activity) were relevant to a Chevron analysis, the BLM should win in this case. The BLM has long governed numerous aspects of oil and gas development on federal lands, including underground activities such as casing (lining) the well so that oil, gas, or other substances flowing through the well do not mix with underground water. Indeed, the BLM historically regulated certain aspects of fracking on public lands--not just conventional oil and gas development. An old regulation issued by BLM's predecessor agency required oil and gas operators to first submit a well casing program to the agency before engaging in well stimulation, which includes fracturing. 30 C.F.R. 221.21 (1942).

Congress in the Federal Land Policy Management Act, which directs the BLM's management of public lands, indicated that it was the express policy of Congress to protect "water resource . . . values" on federal lands and to require the BLM to manage public lands for "a combination of balanced and diverse resource uses" by current and future generations. 42 U.S.C. 1701(a)(8) and 1702(c). Without the ability to regulate fracking, which is used for most new oil and gas wells, the BLM will struggle to achieve this mandated balance.

-Hannah Wiseman

June 22, 2016 | Permalink

Tuesday, May 31, 2016

The Clean Water Act in the Crosshairs

Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co.  The key question in Hawkes was whether a Clean Water Act jurisdictional determination--that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction--is a final agency action within the meaning of the Administrative Procedure Act.  According to a unanimous court, a jurisdictional determination is indeed final agency action.

The majority opinion, written by Justice Roberts, presents the kind of short, businesslike analysis one typically associates with an uncontroversial case.  But then comes Justice Kennedy's concurrence, and it's a doozy.  In three paragraphs, Justice Kennedy (joined, perhaps not so surprisingly, by Justices Alito and Thomas) asserts that "the reach and systemic consequences of the Clean Water Act remain a cause for concern";' that "the act's reach is 'notoriously unclear'" (quoting Justice Alito's concurrence in Sackett v. EPA); that the Clean Water Act holds "ominous reach"; and that the act  "continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the United States." 

This matters, of course, because if Merrick Garland is not confirmed to the United States Supreme Court, if Donald Trump is elected, and if President Trump appoints the kind Heritage-Foundation-Approved judge he has promised to appoint, Justice Kennedy will be probably be the deciding justice in any future challenge to the joint EPA/Army Corps of Engineers Clean Water Rule.  Similarly, if the Sixth Circuit sets aside the rule, the Court will need five votes to reverse that decision, and Justice Kennedy would have seemed, until recently, like the most likely fifth vote.  He doesn't seem that way any more.

This also is a bit surprising.  In his concurring opinion in Rapanos v. United States, Justice Kennedy demonstrated a fairly nuanced understanding of, and respect for, the goals and purposes of the Clean Water Act.  He even took his fellow conservatives to task for lacking such understanding and respect.  So it seemed plausible that he would continue to think the the act's protections serve important purposes, and that he would realize that EPA and the Army Corps implement those protections in ways that are actually quite solicitous of the state, local, and business interests that Justice Kennedy (along with many other people) obviously cares deeply about (I've written about that general subject here and here).  It must have seemed plausible to staff and EPA and the Army Corps, too, for they invested years or work in writing a new rule that relies heavily on Justice Kennedy's Rapanos opinion.  Now, however, it's as though that opinion never happened.  In its place, both at the Hawkes oral argument and now in his concurrence, comes rhetoric seemingly plucked directly from industry lobbyists' talking points.  Perhaps we should have seen this coming, for in recent years Justice Kennedy has played a key and enthusiastic role in gutting campaign finance regulation and the Voting Rights Act, joined an opinion that would have taken down the Affordable Care Act, and generally has been a fairly reliable supporter of any conservative activists' project that did not involve blocking gay marriage.  But still, some of Justice Kennedy's past environmental opinions seemed to foreshadow a different position on the Clean Water Act.

In a post just a few months ago, I predicted that if the Clean Water Rule reached the Supreme Court, Justice Kennedy would likely vote to uphold it.  Oops.  I'm not making that prediction any more.

-Dave Owen 

May 31, 2016 | Permalink | Comments (1)

Monday, May 2, 2016

Local Fracturing Bans Preempted in Colorado

Following a general trend toward state preemption of local control over oil and gas development, the Colorado Supreme Court issued two opinions today finding that Colorado law preempts local hydraulic fracturing (“fracking”) bans and moratoria in Longmont and Fort Collins.  The state constitution of Colorado gives local governments home rule authority, with article XX, section 6 providing that local law shall “supersede” any conflicting law of the state.  This suggests that local governments in Colorado have relatively strong local powers.  But the Colorado Supreme Court has long held that local laws may supersede state law only when the laws relate to “matters of local concern,” such as a local sales tax.  When local laws involve matters of statewide concern, or matters of mixed state and local concern, state law supersedes the local laws if the local laws “conflict” with state law or are otherwise preempted.

Following its earlier Voss decision, the Colorado Supreme Court determined in its two cases today that hydraulic fracturing is a matter of mixed state and local concern, applying a four-factor test: 1) the importance of statewide uniformity of regulations, 2) extraterritorial impact of the local regulation, 3) whether the area has been traditionally regulated by state or local governments, and 4) whether the Colorado constitution specifically indicates that the regulatory area should be governed by state or local governments.  With respect to the importance of statewide uniformity, the court noted that oil and gas sits in shared reservoirs underground, and that a local ban could impact the many rights of individuals who have an ownership interest in that pool of oil and gas—including rights in other local jurisdictions.  Furthermore, a patchwork of local bans could make fracturing less productive and could cause “waste” of oil and gas, meaning that the maximum potential amount of oil and gas would not be extracted when fracturing occurred.  The court also found that local fracturing bans impact other jurisdictions—possibly making it more expensive to produce oil and gas by forcing a company to drill outside of jurisdictional limits to access underground reserves—and possibly causing a “ripple effect” that encouraged other local governments to implement similar bans.  For the third factor, the court noted a conflict.  The State of Colorado has traditionally regulated oil and gas development, but local governments have traditionally regulated the types of uses allowed on land within their jurisdiction (including oil and gas uses).  Thus, the court found that there is mixed state and local interest for this factor.  Finally, the Colorado constitution does not make clear whether fracturing control should be within state hands or whether local governments should have exclusive land use authority.

The court then went on to determine whether state law preempted local control, using a conflict preemption analysis.  In the Longmont case the court noted the importance of local land use control over oil and gas, pointing to the General Assembly’s having “recognized the propriety of local land use ordinances that relate to oil and gas development.”  And the court emphasized that the State of Colorado lacks exclusive control over regulating the technical aspects of oil and gas development.  However, the court noted that the Colorado Oil and Gas Conservation Commission regulates certain aspects of fracturing—indeed, the court perhaps exaggerated the extent to which the state regulates fracturing. For example, in the Longmont case the court characterized Colorado’s requirements for disclosing fracturing chemicals as requirements that “regulate the fracturing process.”  This is perhaps a reach because the requirements are merely informational and do nothing to substantively limit the fracturing process.  However, the court also pointed to Colorado’s regulation of the disposal of waste from fractured wells. It then went on to find that local bans on fracturing and the storage and disposal of fracturing wastes “materially impede” state law, which allows fracturing and regulates it. It thus determined that state law preempts local moratoria and bans relating to fracturing.

These opinions follow similar preemption of local regulation and bans on fracturing in Louisiana (Energy Management Corp. v. City of Shreveport, 397 F.3d 297 (5th Cir. 2005)), New Mexico (Swepi v. New Mexico, 81 F.Supp. 3d 1075 (D.N.M. 2015)), Ohio, Oklahoma, Texas, and West Virginia. The exceptions to the trend are New York and Pennsylvania

Many of these cases, including those decided today, have not yet fully grappled with the challenge of reconciling strong home rule authority over land use matters with a state's interests in regulating oil and gas development. Instead, the courts tend to promptly find preemption, concluding that a state's interests win out over local control despite the state's having previously granted extensive home rule authority to its local "arms."

-Hannah Wiseman

May 2, 2016 in Energy, Land Use | Permalink