Monday, July 8, 2013
Resources for the Future has released a new report, The State of State Shale Gas Regulation, summarizing state shale gas regulation. The report is authored by Nathan Richardson, Madeline Gottlieb, and Alan Krupnick at RFF, along with Hannah Wiseman at Florida State. The report compares twenty-five regulatory elements—from well spacing rules to wastewater transportation—across thirty-one states with actual or potential shale gas production. The report is written in a highly accessible style and format, provides valuable information about an extremely active area of energy and environmental law, offers some important insights, and also expresses its limitations clearly (see, e.g., Figure 3 on page 11).
One of the key conclusions of the report is that state regulation of shale gas development exhibits considerable heterogeneity across states—that is, states are regulating differently. This heterogeneity may or may not be a good thing. On the one hand, with a rapidly developing area like shale gas development, and in which state rather than federal governance predominates, it makes sense that different states are experimenting with different regulatory approaches. Moreover, physical differences across states may justify different types and levels of regulation. (Political and economic differences also may lead to regulatory differences; whether politics and economics justify regulatory differences is a thornier issue.) On the other hand, we should not take for granted that heterogeneity is beneficial—some regulatory approaches may be demonstrably better than others. Hopefully the report’s comparisons will contribute to thoughtful debate in the states about the relative effectiveness of different regulatory approaches.
Thursday, July 4, 2013
Happy Independence Day, everyone!
Unfortunately, I am spending my day with a health issue. By way of a silver lining, that gave me the perfect excuse to catch up on episodes of "Through the Wormhole." All of which has led me to conclude: If you're still a stranger to "Through the Wormhole," you shouldn't be. (And, by the way, the first two seasons are readily available through Netflix and probably a lot of other services.)
So, why make the effort to watch?
(1) If you like environmental law, the chances are good that you have at least a passing interest in science. This is cutting-edge science, presented in a very intelligent format.
(2) Okay, it's mostly physics (and mostly of the quantum/cosmological type) -- but how often do we get to go there?
(3) Morgan Freeman hosts. 'Nuf said.
(4) But none of that would be enough on its own for me to feature the show on this blog. The real reason that I think "Through the Wormhole" is worth the effort for environmental law professors is that the show provides EXCELLENT examples of how to teach complex scientific concepts. Each episode starts with a plain English, common-sense explanation of why what you're about to learn is important. You then get some normal-life analogy to explain what the scientists are doing -- for example, smashing a watch becomes analogous to smashing atoms. But the best part of the show are the visuals it treats you to -- pictures, animations, special effects (aliens morphing into scientists being my favorite so far), and all manner of scientific illustrations and data displays -- while the scientists and Mr. Freeman explain (with excellent senses of humor all around) what the heck the scientists are doing.
I can't say, after watching the episode on subatomic particles, that I can give you a physicist-quality explanation of what a Higgs boson is -- although, in my own defense, the physicists talking about it seemed a little blown away by the concept as well. On the other hand, the episode on the possibility of alien life certainly gave me some new perspectives on water and ecological principles that I plan to incorporate into class, and the discussions of alternate evolutions on Earth (with careful and understandable presentations of the scientific evidence) will have repercussions for how I teach students about deep-sea thermal vent ecologies in Ocean and Coastal Law. I recommend the episode to anyone who teaches biodiversity issues to students.
More importantly, the series as a whole is giving me some great new perspectives on how to blend lecture, video, and graphics into much more effective presentations of hard-core science than I've been doing to date. I think that the examples from the series will be especially instructuve for how I teach the basic science of climate change in Environmental Law and the basic human biochemical reactions to toxins in Toxic Torts. I'm really looking forward to experimenting next year!
Give the show a try!
-- Robin Kundis Craig
July 4, 2013 in Biodiversity, Climate Change, Physical Science, Science, Sustainability, Television, Toxic and Hazardous Substances, Water Resources, Web/Tech | Permalink | Comments (1) | TrackBack (0)
Tuesday, July 2, 2013
Busy as I've been with summer work, I didn't get around to listening to President Obama's climate change speech until last night. In case you are in the same situation, the video is here and a full transcript is here.
What a terrific speech. I really liked Obama's observation that those who say that environmental regulation will harm the economy lack faith in American ingenuity. He gave a lot of good examples of how regulation has led to innovation that has been good for both the economy and the environment. This message would have broad appeal if people would listen.
Another highlight was Obama's remark that Keystone XL should not go forward if it would “significantly exacerbate the problem of carbon pollution,” commented upon at Legal Planet by Steve Weissman.
I also appreciated Obama's calling out that environmental protection has not always been and should not be such a partisan issue. I knew, for example, that the Clean Air Act was signed by President Nixon, but I didn't realize that it passed the House and Senate almost unanimously (with just one no vote in the House). Wow.
And, finally, I liked how Obama made references throughout about the importance of this issue to today's children. As I've said before, I don't get why more parents and grandparents aren't demanding strong action. As Obama put it: "And someday, our children, and our children’s children, will look at us in the eye and they’ll ask us, did we do all that we could when we had the chance to deal with this problem and leave them a cleaner, safer, more stable world?"
- Lesley McAllister
Wednesday, June 26, 2013
Today's blockbuster isn't an environmental case. But as I read through the Court's opinion, I found myself thinking of Massachusetts v. EPA. Both cases, on their face, turn on the application of a federal constitutional principle. Each case also involved a principle that we traditionally interpret and apply without much reference to ideas of federalism. Both standing (Massachusetts v. EPA) and, to an even greater extent, equal protection (Windsor) have affected relationships between the federal government and the states. But (and more knowledgeable constitutional lawyers may correct me on this) I don't think there was a long tradition of letting the involvement of states drive the standing analysis, or (outside of the states' role in defining property rights) letting the political enactments of states determine the level of federal constitutional protection for asserted individual rights.
Nevertheless, in Massachusetts v. EPA, the Court attributed "considerable relevance" to the state status of the plaintiff. And today's opinion repeatedly emphasizes the protection some states--including New York, where Edith Windsor and Thea Spyer lived--have chosen to accord to same-sex marriages. In both opinions, it is far from clear exactly how the gloss of federalism changes the constitutional analysis; it matters, but we don't know exactly how. And in both cases, dissents, though otherwise (in my view) spouting a fair bit of nonsense, pointedly criticized this ambiguity.
So what's going on? Or, more narrowly, what is Justice Kennedy up to (he didn't write the Massachusetts v. EPA opinion, but he did raise the state-plaintiff point at oral argument, and it seems fairly likely that Justice Stevens' opinion was written in large part to appeal to Justice Kennedy's concerns)? It seems that Justice Kennedy would very much like to give legislative pronouncements a greater voice in constitutional interpretation, even where the interpretive questions involve matters like the scope of individual rights or the jurisdiction of the courts. That's not a new idea; many people have argued that a dialogue between the courts, legislatures, and the general public does and should shape constitutional law. But I think Justice Kennedy would like to go one step further, and establish a special place for the states in this constitutional dialogue. He doesn't seem to have figured out how to ground that notion in past precedent, or to articulate language that would turn his constitutional intuition into a set of doctrinal principles applicable in future cases. Hence the ambiguous and somewhat puzzling opinions (or, in Massachusetts v. EPA, passage of an opinion). But the intuition nevertheless seems to drive results.
Today, those results are really, really good. And I think Massachusetts v. EPA was a pretty wonderful outcome as well. But it's interesting to ponder where else this half-emerged vision of constitutional law would take us.
Tuesday, June 25, 2013
This morning, the U.S. Supreme Court issued a divided decision in Koontz v. St. John’s River Water Management District that expands Takings Clause protections for landowners. I raised the possibility last October that the case could serve as a vehicle for the Court to provide some sense of clarity to the field of takings jurisprudence that would benefit both landowners and government regulators alike, yet it appears on my first read of the 5-4 opinion that the Court has failed in this regard. Moreover, while the decision is undoubtedly a victory for proponents of a conception of property grounded in individual autonomy and control, there may be some silver lining for those who understand property as a socially contingent institution.
In this post, I will provide some background on the Court’s decision, address some unanswered questions surrounding the Court’s expansion of takings protections, identify some potential points of hope in the opinion for proponents of sensible land use regulation, and offer some brief commentary on the vision of government officials espoused by the majority.
Background on Today’s Decision
Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that a challenged exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.
Today’s case involves a Florida landowner, Coy Koontz, who hoped to construct a commercial shopping center on his 14.2-acre lot. A discretionary permit from the regional Water Management District was necessary because nearly all of Koontz’s property lies within a protected hydrologic basin. Construction of the shopping center would require the destruction of 3.4 acres of protected wetlands and 0.3 acres of protected uplands. In his application, Koontz offered to “mitigate” the wetland loss by preserving the remaining undeveloped portion of his property in its natural state through a conservation easement.
That the District found Koontz’s self-proposed “mitigating” condition inadequate is quite unremarkable, given that Florida law is premised on avoiding net wetland loss. While the District could have exercised its authority to deny Koontz’s application outright at that point, it instead identified several possible conditions—including reducing the size of his development or funding offsite wetland improvements—that, if accepted by Koontz, could allow for the development to proceed. Moreover, the District left the door open for Koontz to propose other conditions to offset the wetland loss.
Koontz, however, refused the District’s proposals and chose not to offer any of his own. Therefore, the District ultimately denied Koontz’s development application. Koontz then alleged that the District’s proposed conditions were unconstitutional in light of Nollan and Dolan, even though those conditions were never actually imposed upon him and did not, as was the case in Nollan and Dolan, require public occupation of Koontz's real property.
At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan framework (1) is applicable at the point in time when an exaction is merely proposed, and (2) applies to exactions beyond those that require public occupation of private lands. The Florida Supreme Court reversed, and, last fall, the U.S. Supreme Court granted Koontz’s petition for certiorari.
In today’s opinion authored by Justice Alito, a five-Justice majority reversed and remanded to the Florida Supreme Court. Largely agreeing with the state appellate court, Justice Alito wrote that (1) the heightened scrutiny of Nollan and Dolan is applicable at the point in time when a condition is merely proposed, even if the permit ultimately is denied; and (2) Nollan and Dolan apply to conditions beyond those that require public occupation of private lands to include conditions that would require the applicant to fund offsite mitigation.
In dissent, Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, agreed with the majority that Nollan and Dolan apply not only upon the issuance of a permit conditioned on the owner’s conveyance of a property interest but also when the government denies a permit until the owner conveys a property interest. However, Justice Kagan forcefully disputed whether any particular condition actually had been proposed here and, even assuming one had, admonished the majority for subjecting conditions requiring the payment of money to Nollan and Dolan, for doing so sets up a situation where lower courts will struggle to distinguish between takings and taxes/fees.
More Muddling of Takings Law
The majority opinion did not provide any guidance on the contours or applicability of the traditional Penn Central framework in permitting cases that fall outside of Nollan and Dolan, and only confused and complicated matters regarding where and when Nollan and Dolan apply. Here are four examples:
First, the entire Court conceded that no property actually was taken from Koontz and that he therefore is not entitled to just compensation in accord with the Fifth Amendment. The majority offered that the potentially unconstitutional act here is the government’s “impermissibly burden[ing] the right not to have property taken without just compensation,” but did not discuss what remedy, if any, might be available to a claimant who successfully argues that a proposed exaction does not pass Nollan and Dolan muster.
(Though not discussed in today’s opinion, the District ultimately issued the permit conditioned only on Koontz’s original, self-proposed conservation of 10.5 acres. The state appellate court concluded that Koontz was entitled to approximately $400,000 in compensation for lost rents over the period of time between the denial of his original development application and the issuance of the permit.)
Second, the majority acknowledged that some proposed conditions might not be “concrete and specific” enough “to give rise to liability under Nollan and Dolan,” but did not remark on which types of proposed conditions might fit this bill.
Third, the majority said that since the landowner wanted to build a shopping mall on 3.7 acres and one of the government’s proposed conditions was to reduce the size of the mall to 1 acre, the “government benefit” at issue was a “permit to build on … 2.7 acres.” Justice Alito did not explain why the claimant should be the one to determine the baseline property interest at stake.
Fourth, responding to a concern raised by the dissent, the majority asserted that it has “had little trouble distinguishing between” the power of taxation/fee-imposition and the power of eminent domain. This claim does not bear out in Supreme Court case law, according to property scholars from markedly different corners. Moreover, lower courts in some jurisdictions routinely identify as taxes or fees impositions that other jurisdictions consider to be takings.
There is little doubt that today’s decision will constrain government’s ability to promote some responsible development while ensuring that the public health, public safety, and environmental impacts of new, intensified land uses are equitably born by its developers and users. Burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions is nearly certain to place a significant chilling effect on regulator-landowner coordination. Governmental officials may be forced into uncommunicative rejections or unconditioned approvals of development applications when a more amenable compromise may have been available. As Justice Kagan wrote in dissent, “If every suggestion could become the subject of a lawsuit under Nollan and Dolan, the [District’s] lawyer can give but one recommendation: Deny the permits, without giving Koontz any advice—even if he asks for guidance.”
However, proponents of sensible land use regulation can take some solace in several aspects of the Court’s opinion. For instance, on a general level, the majority fully endorsed the state’s interest in protecting against wetland loss and acknowledged that “[i]nsisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy.” These types of statements arguably bode well for the constitutional fate of environmental regulations moving forward.
More specific to this case, the majority did not decide whether the District’s proposed conditions actually fail to comport with Nollan and Dolan's demands, only that they are subject to those demands (so long as, apparently, the proposed conditions are “concrete and specific” enough). That the proposed conditions here seemingly result in, as explained in more detail below, a net loss of wetlands offers the Florida Supreme Court a clear path to rule against the landowner on the merits on remand.
A Certain Vision of Government
The Court’s decision offers a vision of governmental permitting officials as powerful, strategic extortionists. For instance, the majority, without citing empirical support, referred to the prospect of permitting officials attempting to “circumvent Nollan and Dolan,” “maneuver,” “coerce,” “evade,” make “extortionate demands,” “leverage its legitimate interests,” and “pressure [applicants] into doing [something].” However, there, of course, is a competing narrative—one long espoused in Takings cases by the likes of former Justices Brennan, Blackmun, and Stevens and regularly asserted in legal scholarship critical of public choice theory—that suggests these officials are not only quite capable of acting but regularly do act in pursuit of the common interest.
Given the perspective offered by Justice Alito, it seems appropriate to acknowledge its flipside: it is possible—and there is at least some anecdotal evidence to support the idea—that local governmental entities can be overwhelmed by the power of developer interests in certain circumstances. In this light, while the SCOTUS considered in Koontz whether the Water District asked for too much in wetlands mitigation, it is seems quite possible that the Water District may not have asked for enough.
Demanding that Koontz conserve 13.2 wetland acres in exchange for destroying 1 acre of wetlands does not “mitigate” the wetland impact but instead results in a net wetland loss. To actually mitigate the destruction of one wetland acre (upon which development is otherwise prohibited), it seems more appropriate that the government demand that an applicant: (1) create a certain multiple number of acres of new wetlands; (2) restore degraded wetlands; (3) enhance the functionality of existing wetlands; or (4) place a conservation restriction on valuable upland wetland buffers or wetlands that for some reason are not protected by existing law.
Of course, if there were a concern that a project might result in an external impact but the government chose not to consider an exaction to offset it (and instead simply chose to issue the permit), current exaction takings law seemingly places no limits on such governmental inaction, despite the ill-effects suffered by the neighbors and nearby residents of the development site and the workers and those who recreate in its vicinity. But it seems worth asking why we are so focused on what the protesting landowner lost but hardly at all on what the public has lost. In other words, it seems worth considering not only whether the government has, in Justice Holmes immortal words, gone “too far” in serving the public interest but also whether it has gone far enough.
-Tim Mulvaney (email@example.com)
UPDATE, 6/27/13: Ilya Somin praises the Court’s decision on The Volohk Conspiracy. Meanwhile, Rick Hills (buttressed by a comment from exaction takings guru Mark Fenster) and Eduardo Penalver are quite critical of the decision on Prawsblawg, as is John Echeverria in a New York Times op-ed. Somin responds to Hills here.
Wednesday, June 12, 2013
As I discussed here a couple years ago, the Regional Greenhouse Gas Initiative (RGGI) was significantly overallocated. In its first three-year compliance period (2009-11), the power plants regulated by the program emitted 377 million tons, a mere two-thirds of the total amount allowed under the cap (data generated using the RGGI CO2 Allowance Tracking System). The oversupply of RGGI allowances resulted in very low allowance prices. In the quarterly auctions held in 2012, allowances sold at the reserve price of $1.93 per ton, and fewer than two-thirds of available allowances were purchased (data from RGGI’s Market Monitor reports). Similar conditions prevailed at most of the quarterly auctions in 2010 and 2011. In contrast, in the first auction of 2009, the average bid price was $3.51, and there were offers to buy more than twice the number of allowances available.
Earlier this year, RGGI was reformed to address its overallocation problem. RGGI released an updated Model Rule that would reduce the 2014 cap from 165 to 91 million tons (the actual 2012 emissions). As in the original rule, the cap declines by 2.5 percent each year from 2015 to 2020. The reform was anticipated to increase allowance prices to $4 per ton in 2013 and up to $10 per ton in 2020, and it seems to be working. In the second quarterly auctions of 2013, held on June 5, allowances sold for $3.21 and all allowances were purchased.
RGGI deserves a fair bit of credit for reforming the program. Getting the nine member states to agree to reduce the cap could not have been a simple task politically (though the revenue-raising potential helped, I’m sure). Yet, it should not be left unsaid that the effectiveness of the program remains in doubt. Given the changes in the energy sector over the last few years, the program is still not particularly ambitious. Single-digit allowance prices will not drive an energy sector transition.
- Lesley McAllister
Tuesday, June 11, 2013
Elizabeth Lucas, Center for Public Integrity, and Robert Benincasa, NPR, have analyzed Environmental Protection Agency databases to come up with this highly informative, interactive map of sites that release hazardous pollutants into the air. These sites are "high priority violators" of the Clean Air Act, and have seemingly escaped serious regulatory action to curb their emissions. More from the disturbing report accompanying the map can be read here.
- Blake Hudson
Monday, June 10, 2013
Recently the New York Times, echoing some earlier local media coverage, ran an article about an ongoing regulatory initiative from the South Coast Air Quality Management District (SCAQMD) to close open fire pits on public beaches in Southern California because of air pollutant emissions. The article begins with descriptions and testimonials to the Southern Californian “dream of the beach as a realm of endless, carefree fun,” which despite its rather overwrought tone resonated with me, as I grew up in Southern California going to many of the beaches mentioned in the article. I was less moved by the article’s intermingled references to “a blizzard of restrictions,” which seemed like a typical overwrought knee-jerk reaction to regulation.
And indeed, toward the end of the article, when it begins to discuss in earnest some of the beach regulations, they turn out to seem quite wise. Alcohol was banned, for example, after a drunken brawl on a beach. The proposed removal of the fire rings also seems well justified. A recent study prepared for the SCAQMD found that one fire pit in one evening may emit as much particulate matter as a heavy-duty diesel truck driving 564 miles—an astonishing statistic. In an area struggling to address its persistent and severe air pollution problems, leaving fire pit emissions unregulated would seem foolish. There are very localized effects as well. A woman who lives two blocks from the beach says that she has to shut her windows in the evenings to avoid asthma attacks. These are real and serious impacts, and they make the beginning of the article’s references to the loss of ‘fun’ seem comparatively silly—in addition to playing on its beaches, I also grew up choking on Southern California’s smog. I wonder whether the advocates for ‘fun’ quoted earlier in the article were aware of these facts when they made their statements. In the end, the article left me more annoyed than anything—not so much at the advocates for ‘fun,’ but at the New York Times for front-loading its article with overwrought elegies to a lost ideal—environmentalists as killjoys—and burying the serious discussion at the end of the article.
Friday, June 7, 2013
Last week, I attended the biannual Natural Resources Law Teachers’ Institute in Flagstaff, Arizona. It was my first time at the conference, and I’ll definitely go again. It’s a great conference—well attended, a welcome focus on teaching as well as (and often in combination with) research, a good field trip, and, with one quickly-corrected exception, not a necktie in sight.
A few things in particular struck me about the conference. In no particular order:Zyg Plater gave a keynote address based on his new book about the snail darter controversy. If you ever have a chance to hear him tell the story, don’t miss it. It’s a fascinating tale even when told by others, but hearing it straight from the source was a true treat.
The Colorado River panel brought some interesting news. The first presentation, from Colorado’s Brad Udall, summarized the future implications of climate change for the basin. It was scary. But two other presentations brought surprising glints of hope. First, Theodore Melis, a scientist from the Grand Canyon Monitoring and Research Center, explained how the much-maligned adaptive management programs on the Colorado River might be creating some measurable successes. Humpback chub, one of the basin’s many endangered species, seem to be bouncing back, and a new breeding population has been successful established on Havasu Creek. Second, Robert Snow, an attorney from the Department of the Interior, explained how recent U.S.-Mexico negotiations have produced several breakthroughs, including toward cooperative and more efficient use of storage and delivery infrastructure. The recent agreements also include measures to return a little bit of water to what used to be the Colorado River Delta.
Not surprisingly, fracking was the key word of the conference. Fracking also produced the conference’s two most jarring slides. The first, from a presentation by Kalyani Robbins, shows the extent of natural gas exploration in a Pennsylvania state forest. No multiple use here. The second, which appeared in multiple presentations, was this nighttime satellite photo of the United States. What looks like a major new metropolitan area in northwestern North Dakota actually is natural gas flaring above the Bakken Formation.
If fracking was the leading theme of the conference, Joe Feller was its defining personality. The conference took place under tragic circumstances. Joe Feller had taken the lead in selecting a site and initiating the planning. But a few months ago, he was hit by a car while jogging and died. At the conference, we watched a video tribute to Joe, had a few minutes for remembrances, and took a group run in his honor. Individual presentations were peppered with stories about Joe. All of this might sound quite sad, and I suspect for many participants—particularly the many who knew Joe much better than I did—it was. Yet somehow, Joe’s memory seemed also to bring levity to the conference. So many of the stories were funny, and Joe clearly took great joy from his life’s work and play. The shared memories of Joe seemed like a reminder to enjoy having the good fortune to do the work we do, and to get out and explore the places we care most about. That legacy, I think, signifies a life lived well.
Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, May 27, 2013
Let's be honest. Whether it is a Hummer or a Prius, a truck/car is a terribly inefficient way to transport a human body. To use a 3000 pound (Prius) or 6600 (Hummer) pound vehicle to transport a single or a few human bodies that weigh at most a few hundred pounds is just a bad use of energy - unless, of course, that energy is entirely renewable. Bicycles, on the other hand, are by far the most efficient tools for transporting a human body through space and time. See more info here, and this chart demonstrating a bicycle's dominance in translating energy into transportation:
I like cycling. I bike to work for a number of reasons. It helps me (attempt to) stay in shape, I don't have to pay for parking at work, and it only takes me five minutes longer than it would to drive/sit in traffic, which in and of itself can be maddening. But I am from Alabama, and currently live in Louisiana - there are a lot of trucks in both places. Chevy Silvarados and Ford F-150's abound. While it is easy to be critical of gas guzzling Gulf Coasters - and indeed many owners of such trucks have them only for style or similarly uncompelling reasons - often there is a genuine need for a vehicle of the type. Whether it be for use on a farm, or in my case, a forest with hills that are virtually untraversable without the use of a 4 wheel drive vehicle, trucks provide utility beyond considerations of energy efficiency.
The problem, to state the obvious, is the fuels we use in all of our vehicles. A Californian who commutes 250 miles a week in a Prius that gets 50 mpg emits more vehicle-based carbon than the Louisianan who drives 90 miles a week in a Ford F-150 with a V-6 ecoboost engine that gets 22 mpg, but who bikes to work. Then there is the person who drives a Prius 90 miles per week and bikes to work, and the person who lives near public transportation and does not own a car. Ultimately, the choices we make regarding our transportation of choice facilitate our ability to be more or less carbon intensive, but only within a small range. In other words, in a fossil fuel driven world, any transportation that relies on a vehicle that weighs more than a ton to transport bodies weighing only a fraction of the total weight has significant carbon impacts, though the person driving the "gas guzzler" may be vilified and the person driving the Prius viewed as environmentally responsible.
Enter the future, and solar powered homes, and plug-in 4x4 trucks. In the future, perhaps our drawing fine distinctions between two terribly inefficient transportation options will be a thing of the past. Everyone will be using electric powered vehicles powered by a resource that will (or should) be with us for at least the next 5 billion years - the sun.
Take this guy, who helps identify where the real source of green angst should be directed (apologies for the advertisement before the video commences. A link to the video is here if the embed feature does not work):
So it is not the monster truck that should be vilified, but the monster truck that runs on fossil fuels that should be frowned upon. The fuel source should be the real source of environmentalist angst, not the machine that carries the person. The Prius owner should not look down upon the F-150 4x4 driver, but they all should be working toward moving away from that terrible fuel source that creates such ultimately silly artificial divisions on the highway. Of course, batteries in electric vehicles give rise to a host of environmental problems. But I hope that one day recyclable batteries made out of renewable cellulosic biofuel material, housed in Priuses and 4x4's all around the country, and charging from the energy of the sun, will allow the Prius owner and the 4x4 owner to drive separately, one person per car, to the Monster Truck rally (or NASCAR race), where they can sit beside each other, watch "Silent Foot" crush the gas guzzlers of the past, and listen to the cars crunch much more clearly than their ancestors ever could.
- Blake Hudson
Wednesday, May 22, 2013
A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams. And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries. Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics. Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence. As former Secretary of the Interiror Bruce Babbitt once put it, “we overdosed.” We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements. But, in the standard narrative, the removals aren’t coming nearly fast enough.
I agree with this story, and most of the underlying facts aren’t really in dispute. But another narrative of dams lingers on, particularly — but not exclusively — in the reports of the government agencies that manage much of our hydropower. In this story, hydropower remains an essential part of our energy mix. Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher). While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables. For a few key reasons, that 7 percent is also particularly useful. First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States. Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve.
Hydropower’s share also could grow. Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has approximately 80,000 non-hydropower dams). How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or—dare we hope—a price on carbon could make expanded hydro look much more economically appealing. In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future. And this narrative is not just idle storytelling. In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower.
We often think that our energy needs inevitably will conflict with environmental protection, and these two narratives might on their face seem to reinforce that view. But is the tension between these narratives unavoidable? The answer, perhaps surprisingly, is "not always," and a case study illustrates the possibilities. On the Penobscot River in Maine, an ambitious dam removal project is currently underway. Once completed, the project (which I’ve blogged about here, and which is described in more detail here, here, and here) will involve multiple dam removals and fish passage improvements on the dams that remain. Hundreds of miles of river habitat will be opened to the river’s many anadromous species — fish that breed in freshwater, but spend most of their lives in saltwater — and scientists anticipate exponential increases in their populations, with benefits for both freshwater and saltwater ecosystems. All of this will happen without any loss of hydropower. By moving and upgrading facilities, Black Bear Hydro LLC, which owns the dams, will be able to sustain its present generating capacity. Both the upgrades and the environmental improvements arose out of one big negotiated deal, with environmental groups and the Penobscot Indian Nation essentially offering support for what otherwise would have been contentious license renewals (as well as a substantial financial payment, which some of the groups helped raise) in return for the environmental improvements. In short, on the Penobscot, environmental improvements and hydropower efficiency upgrades were closely, and legally, linked.
The Great Works Dam site, before and after.
Could that be repeated? Physically, it seems possible. Most river basins in the United States contain multiple dams, and trading removals or improved fish passage in some locations for energy upgrades in others seems like a sensible step. But the legal challenges are substantial. On most rivers, many different entities own the dams, creating a significant coordination challenge, and public governance of watersheds is famously fragmented. As anyone who has worked with FERC licensing knows, renewing even a single license is a long and difficult process, and linking multiple licensing processes together sounds like a formidable task. Consequently, the legal challenges are daunting.
But are they insurmountable? I don’t yet know. But over the next few months, I’ll be taking a close and careful look at hydropower law to try to figure these questions out. The research project goal, ultimately, is to identify legal reforms that will allow our hydropower system to sustain or increase its benefits while reducing, hopefully substantially, the environmental burdens it imposes.
-Dave OwenGlen Canyon Dam image from wikimedia.com; other images courtesy of the Penobscot River Restoration Trust.
Tuesday, May 21, 2013
The California Cap and Trade Program’s third auction was held last Thursday 5/16/13, and the results were released today. I’ve been watching the auction results to see what clues they offer as to whether California’s program will suffer from the suite of problems associated with overallocation (low allowance prices, delayed emissions reductions, and large allowance banks).
Overallocation, however, really only becomes clear in retrospect. Indeed, it is precisely the unknowns of the future that make overallocation hard to avoid. There might be a recession that reduces allowance demand, or there might be solid economic growth. There might be technological change that reduces allowance demand (fracking, for example), or not. Economic change and technological change are just a couple of the exogenous factors that have contributed to overallocation in past programs (others include weather fluctuations, the success of legal challenges, etc.).
Yet there are hints to be gleaned from the results of allowance auctions. One can look at whether the allowances are selling for more than the reserve price. They didn’t for several years in the Regional Greenhouse Gas Initiative (RGGI), but a reform in February to tighten the cap have led to slightly higher allowance prices (latest auction results here). In California, they are, and the third auction looks better by this measure than did the second (see the Settlement Prices below). One can also look at the extent to which the auction is oversubscribed or not. RGGI’s auctions have often been undersubscribed. In this latest Claifornia auction, there were almost double the bids for allowances (1.78 times) than there were allowances. But this is down from California’s February auction, in which there were almost two and a half times (2.47) more bids than available allowances. Notably, all three of California “advance auctions,” which sell allowances that cannot be used for several years, have been undersubscribed (see below). These advance auction allowances have always sold at the reserve price ($10 in 2012, $10.71 in 2013).
I do think there is some "early overallocation" in California’s program, meaning that program caps are above business-as-usual (BAU) emissions in the early years. Indeed, an analysis by Energy GPS (discussed here) finds that the 2011 emissions of the entities regulated by California’s cap and trade program were about 12% lower than the 2013 cap (140.8 mmtCo2eq emitted, as compared to the 2013 cap of 160.4 mmtCo2eq). The analysis further forecasts that the 2013 cap will be about 8% higher than 2013 emissions. Whether overallocation becomes a real problem for the California program (as it has not just for RGGI, but also for the EU Emissions Trading Scheme), will depend on many factors, several of which are out of California's control.
- Lesley McAllister
Tuesday, May 14, 2013
A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents. I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation. Judging from a followup email John sent this morning, I wasn’t the only one. In a short time, it seems, he’s compiled a long list.
But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute. I know I’m not the only one. In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes. The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts. The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action. Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal. Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.
Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness. After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners). Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business. The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents.
I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic. “Don’t ever underestimate,” he told me, “how much we fear that public reaction.” For him, that fear was also leverage. The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl. I doubt his situation was unique. So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.
Monday, May 13, 2013
On Wednesday (May 15), the Environmental Law Institute is hosting a lunchtime seminar on The Future of Standing in Environmental Cases, with a great panel:
F. William Brownell, Partner, Hunton & Williams (moderator)
Amanda Leiter, Associate Professor, American University, Washington College of Law
Thomas Lorenzen, Assistant Section Chief, Environment & Natural Resources Division, Department of Justice
Roger R. Martella, Jr., Partner, Sidley Austin LLP
Allison Zieve, Director, Litigation Group, Public Citizen
I hope that the panel addresses what I regard as one of the most interesting recent developments in standing cases: the number of significant environmental cases in which the D.C. Circuit is finding that industry plaintiffs lack standing. Environmentalists and environmental law scholars have often regarded rigorous standing requirements as biased against citizen environmentalist plaintiffs. See, e.g., Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 465-73 (2008). Indeed, the Supreme Court has essentially admitted as much, noting that plaintiffs who are the target of government regulation generally satisfy standing requirements, whereas establishing standing for other plaintiffs is "substantially more difficult.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). But many of the recent significant environmental cases in which plaintiffs have lost on standing grounds involve industry plaintiffs:
- Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), held that states and industry groups lacked standing to challenge EPA’s Timing and Tailoring Rules.
- Nat'l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir. 2012), held that the National Chicken Council, National Meat Association, and National Turkey Federation lacked standing to challenge an EPA rule interpreting a provision in the Energy Independence and Security Act of 2007 regarding renewable fuel credits.
- Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), held that engine manufacturers, food suppliers, and petroleum suppliers lacked standing to challenge EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines.
- Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge findings by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River in southern Arizona are “waters of the United States” and therefore within the jurisdiction of the Clean Water Act.
- Nat’l Ass’n of Home Builders v. Army Corps of Engineers, 663 F.3d 470 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge the Army Corps of Engineers’ Nationwide Permit 46 authorizing discharges of dredged or fill material into certain non-tidal ditches.
- Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011), held that the U.S. Chamber of Commerce and National Automobile Dealers Association lacked standing to challenge EPA’s decision granting California a waiver from federal preemption of vehicle emission standards under Clean Air Act § 209.
This pattern of losses for industry plaintiffs does not appear to reflect a new development in standing doctrine; each of these decisions relies on well-established standing principles. This makes me wonder whether this string of industry losses is a coincidence, or has some underlying common cause. For example, are industry plaintiffs seeking judicial review more aggressively or expansively?
I am equally interested in seeing whether, if this pattern continues, environmentalists and environmental law scholars will soften their skepticism about standing doctrine. Of course, the obstacles encountered by industry plaintiffs in establishing standing are not necessarily the same as those encountered by environmentalist plaintiffs, and so one can take a principled position that courts have interpreted standing doctrine too stringently as applied to losing environmental groups but correctly as applied to these losing industry plaintiffs. But it does seem to me that, these days, the results in standing cases seem somewhat less disproportionately against environmentalist plaintiffs.
Wednesday, May 8, 2013
In a bit of shameless self-promotion of my home institution, I wanted to highlight that LSU's Laborde Energy Law Center has now been officially launched. You can check out the new website here. The Center was made possible in large part by a gift from LSU Law graduate John P. Laborde, who graciously gave the largest gift to the law school in its history. The Laborde Center will have many missions, but its academic programming will focus in large part on providing students practical training and experiential learning opportunities in the area of energy law prior to graduation, including (but not limited to): field trips to energy facilities to learn about the regulatory compliance and other obligations of those industries; white papers informing the broader legal community of timely energy and environmental legal issues; a speaker series with prominent speakers from both the state of Louisiana and nationally; a concentration program in energy law with expanded energy and environmental course offerings; collaboration with the newly formed LSU Journal of Energy Law and Resources to put on a yearly symposium; development of networking and internship opportunities for students in the energy law field; development of robust interdisciplinary curricular and experiential learning opportunities with programs on main campus (such as Geology, Petroleum Engineering, Nuclear Sciences, Coastal Sciences, Environmental Science, Business, and Chemical Engineering).
We are very excited about the center and hope that it will be a resource that the broader energy and environmental law communities can turn to for expertise in the field. Below is the vision statement of the Laborde Energy Law Center:
The twenty-first century presents no challenge to Louisiana, the United States, and indeed the global community greater than that of producing and distributing energy in an effective, safe, equitable and environmentally sound fashion. To meet this challenge, decision-makers in both the private and public sectors increasingly must rely on attorneys with a sophisticated understanding of the energy industry and the legal and regulatory framework with which the industry operates, in Louisiana and beyond. In recognition of this need, the LSU Law Center has created the LSU John P. Laborde Energy Law Center that will serve as a leading focal point for educating highly skilled attorneys deeply grounded in the law, business and science of twenty-first century energy in all of its manifestations.
Legal and regulatory issues surrounding the energy industry have become increasingly complex and specialized over the past 30 years as new forms of energy have emerged and regulation of the energy sector has increased. In this context, the demand for legal professionals with a broad, deep and interdisciplinary background in energy law will only grow more pressing. To meet this demand, the Energy Law Center will work to provide superlative preparation for “client ready” attorneys ready to meet the needs of our State and the broader national community.
The Energy Law Center will provide an integrative, multidisciplinary approach to energy law specialization that will complement and add to cutting-edge thinking about legal education. Our graduates pursuing specialization in the energy sector will be “prepared for practice” and ready to assist with complex projects involving teams of interdisciplinary professionals in the energy industry.
The interdisciplinary mission of the Energy Law Center will provide an additional link between LSU Law and other LSU campuses and disciplines, such as geology, geophysics, biology engineering, and finance. The Center will also provide new opportunities to build relationships with other interested organizations in the state and across the nation.
Fundamentally, there is no state that is more appropriate for housing such a center, no state in greater need of a comprehensive Energy Law Center, than Louisiana, and no law school better positioned to foster such a center than LSU Law.
- Blake Hudson
Tuesday, May 7, 2013
Below is a Call for Papers that inspires critical, big-picture thinking. Among the possible topics, conference organizers have included the following environmentally-related ones:
- Population and shifting demographics—opportunities and rhetorical strategies
- Capture and the regulated state
- The economy, class and energy policy
- Class, race, climate change and the environment
- The contracting state, private governance and the emergence of a new feudalism?
- The dysfunctional corporate food sytem
ClassCrits VI: Stuck in Forward? Debt, Austerity and the Possibilities of the Political
Sponsored by Southwestern Law School & U.C. Davis School of Law, Los Angeles, CA, November 15-16, 2013
Excerpt from the Call for Papers:
"What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics? How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts. Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order."
Proposal Submission Procedure and EXTENDED Deadline
Please submit your proposal by email to firstname.lastname@example.org by May 15, 2013. Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words. Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.”
See the full Call for Papers and Presentations for more information about this year’s themes and topics.
- Lesley McAllister
Monday, May 6, 2013
Recently, one of my colleagues faced a dilemma involving submissions. Two months ago, he agreed to publish an article in a top specialty journal. It was late in the submission season and he was somewhat naive about the process, so he didn't realize any journals might still be considering the article, and he didn't withdraw the submission from other law reviews. To his surprise, a top law review recently expressed interest. What to do?
I'm curious how other colleagues (and law review editors) have handled this situation. Of course, the best answer is to avoid the situation entirely by withdrawing your submission everywhere else immediately upon accepting a journal's publication offer. But that clearly doesn't alert every journal--most years, I get a few rejections, and occasionally an inquiry, from journals I withdrew from weeks earlier--and I've heard of two other instances where this situation arose. In both, the initial offeror retained the article. But I'm wondering if that's a typical resolution.
- Dave Owen
Monday, April 29, 2013
We are very glad to welcome Professor Robin Kundis Craig to Environmental Law Prof Blog. Robin completed her doctorate in English literature at UC Santa Barbara and her law degree at Lewis & Clark. Before entering academia, she worked for the Natural Resources Section of the Oregon Department of Justice and clerked for U.S. District Judge Robert Jones. She is presently the William H. Leary Professor of Law at the University of Utah S.J. Quinney School of Law.
While first and foremost a water law guru, Robin also has great expertise in property law, civil procedure, administrative law, toxic torts, and environmental law generally. She is the author or co-author of four books – Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (2012); Environmental Law in Context (3rd ed. 2012); Toxic and Environmental Torts (2010); and The Clean Water Act and the Constitution (2nd ed. 2009) – and she is working on a new water law casebook, Modern Water Law, with Professors Bob Adler and Noah Hall, due out in June 2013. She has also published over 50 law review articles and book chapters.
Given Robin’s broad expertise and prolific writing, we are delighted to have her in our ranks this summer!
- Lesley McAllister