Wednesday, October 23, 2013
Lots of people are up in arms about Adam Liptak’s piece in NYT where he trashes law reviews by rehashing arguments we have all heard many times before. I was surprised by the somewhat sloppy nature of the piece that cobbles together some random arguments on different aspects of law reviews and was amused by the fact that an article criticizing law reviews cited so many of them. Many others have already critiqued and/or agreed with the piece (I fall into both those camps myself), and I want to move the discussion to alternative forms of publication. Let’s talk peer review.
My completely unresearched feeling is that environmental law is more connected with peer reviewed literature than some of the other legal fields. I read and cite peer reviewed literature almost as often and law journals and cases. Additionally, peer reviewed journals like Conservation Letters, Environmental Management, and Conservation Biology periodically solicit reviews from me.
Discussion question one: How many peer reviews should one do before feeling okay turning some down? I tend to do almost everyone I am asked to do unless I have a conflict of interest, but the frequency of request increases the more reviews you do so the pile is growing. One of my pals from grad school asserts that it is a 2 to 1 ratio (2 reviews for every one you submit). Frankly, it takes me a long time to do each review too. I would say it is usually a full day’s work for me. Not sure if I am faster or slower than other folks here. I have also been asked to review a few books and they take even longer.
I am also finding myself increasingly interested in publishing in peer reviewed journals. If I am hoping that actual land managers read my work, peer reviewed journals is the way to go. What if I want policy makers to read it though?
Discussion question two: Where should we publish if we hope to disseminate our ideas beyond other law professors? What do we think policy makers read? Anytime of book or journal? The newspaper? Perhaps has Adam Liptak suggests, it should be on blogs. In tweets? Instagram? Therefore all my subsequent posts will be about my research because that is clearly the best way to get Congress to change its approach to land conservation. Sean Nolon recently suggested I start a website, and I think someone else hinted that I should turn my research into a movie. We all know Judge Kozinski loves movies so maybe that is the best way to get him exposed to my brilliance. Of course, it isn’t really judges we expect to read our stuff – just their law clerks.
- jessie owley
Monday, October 21, 2013
In today's New York Times, Adam Liptak has a short piece trashing law reviews. The basic themes are pretty familiar: law review articles are too long and too esoteric (he refers to “the good old days, when it was not unusual for legal scholars to write about topics useful to lawyers and judges”); nobody reads them (in fact, “[l]aw reviews are not really meant to be read"); they’re badly written; and none of that is going to change.
It seems beyond dispute that there are issues with the law review system, and for a good and thorough discussion, readers might skip Liptak’s article and go straight to one of the recent pieces he cites. But Liptak’s article is a mess. Some of the claims are just silly. Like pretty much all of my colleagues, I definitely do intend for my stuff to be read. One can debate whether I’ve earned that readership, but saying—without any supporting fact or authority—that we don’t intend our articles to be read is the sort of mistake that even one of those “incompetent” law review editors would readily catch.
Only slightly less strange is Liptak’s assertion that “[t]he judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.” Clearly blogs are a better sources of quick analysis of breaking news, but that’s because they can be written in a very short time. On that measure, they also outperform books, but that doesn’t mean books lack value. And if one wants analysis of an issue that didn’t just arise yesterday, then a deeply researched article, with every footnote checked by an army of law review students, is probably a lot more reliable than a blog post—just as a carefully researched article about the law review system is a much better source of useful information than, say, a New York Times article.
Beyond those low-hanging fruit, I think there are a few more subtle problems with Liptak’s analysis. And because these problems aren’t unique to Liptak, they merit a bit more discussion.
The judge fixation. The first fallacy is the presumption that one can assess the value of law reviews by quoting a few judges. Liptak, for example, places heavy emphasis on a few familiar quotes from Chief Justice Roberts and Judge Dennis Jacobs, both of whom argue that picking up a law review article and sitting down to read would not be a sensible use of their time. But that doesn’t mean law reviews are irrelevant to judicial decision-making. I don’t think the judge I clerked for spent much time reading law reviews. But I did. When I tackled unfamiliar legal areas—which, for a clerk fresh out of law school, can be a weekly occurrence—I found that law review articles were helpful places to start. Often I was more interested in their summaries of relevant law and in the sources they cited than in their recommendations, but not always. In any event, those articles were quite useful to me, and, therefore, to my judge, even if he didn’t realize it, and even if I never cited them in the draft orders I wrote. I suspect the same is true for the judges Litpak quotes.
Moreover, some articles may be useful even if they aren’t valuable to judges. Articles designed to help local officials better understand their powers, to encourage agencies to regulate in different ways, to help inform legal teachers, or to guide new legislative initiatives all can be quite valuable. Obviously some legal scholarship should be useful to judges. In the legal world, they do still matter. But there’s no reason why all of it should be.
The misplacement fixation. Another key critique of law reviews is that their system for placing articles is a mess, which leads to a poor correspondence between journal prestige and article quality. The evidence is fairly overwhelming that the placement system does have systemic biases, most of which operate to the disadvantage of less-established writers. But I’d argue that this isn’t that big a problem, and certainly isn’t a basis for dismissing the entire system as deeply flawed. Good articles still get printed. Bad articles are still easy to ignore, even if they’re highly placed. And in my experience, other professors do a good job recognizing quality work, at least within their own area of expertise. Misplacement also has a significant silver lining for lower-ranked journals: every time top journals screw up, their mistake allows students at a lower-ranked journal the opportunity, if they’re smart enough to grab it, to work on a high-quality, valuable article. If placement corresponded perfectly to quality (something that doesn’t happen even in the peer-reviewed world), being an articles editor on the Maine Law Review or an environmental specialty journal would be much less rewarding than it currently is.
The condescension. A last theme here is that the students actually running law reviews are incompetent. In my experience, again, that claim is badly overstated. Judging the relative merits of articles from many different legal sub-fields is a hard thing for second-year law students to do. And the comments I receive from other professors are often more constructive--at least on matters of content--than those I receive from students. But every article I've ever written has been improved by student review. Sometimes the students' lack of knowledge is actually the key to those improvements; their edits help me identify places where a non-expert reader would be confused. Usually the improvement comes just from having smart, motivated people thinking hard about every page and every footnote of the article. And if my experience is at all typical--and I suspect it is--that justifies a little more respect for a lot of hardworking, and competent, students.
Tuesday, October 8, 2013
The LSU Law Center is thrilled to be hosting one of our co-bloggers, Hannah Wiseman, Florida State University College of Law, as the inaugural Liskow and Lewis Visiting Professor in Energy Law. The lecture is part of a series of new initiatives of the newly created Laborde Energy Law Center at LSU. In addition to the lecture, Hannah will be visiting with students in a number of classes as well as teaching one class during her visit. We certainly look forward to Hannah's visit and hope you will attend if you are in the area! A description of the program is below:
Professor Hannah Jacobs Wiseman, a rising star in the field of energy law, will speak at the LSU Law Center on Thursday, October 10 as the inaugural lecturer in the Liskow & Lewis Visiting Professorship in Energy Law series. The lecture, “Enhancing Sub-Federal Renewable and Fossil Energy Governance,” will take place at 5:00 p.m. in the David W. Robinson Courtroom at the Law Center. This event is free and open to the public. Please call 225-578-8645 to register.
The Liskow & Lewis Visiting Professorship in Energy Law provides funds to bring distinguished scholars in energy law and closely related fields to the LSU Law Center on an annual basis. An Assistant Professor at the Florida State University College of Law, Professor Wiseman’s research focuses on the challenges of governing rapidly changing, multijurisdictional issues in energy, land use, and environmental law. She has written and spoken extensively about these challenges in the context of shale gas development and renewable energy.
Liskow & Lewis Visiting Professorship in Energy Law
Thursday, October 10, 2013
David W. Robinson Courtroom, Second Floor (New Building)
LSU Paul M. Hebert Law Center
1 East Campus Drive
Baton Rouge, LA
- Blake Hudson
Monday, October 7, 2013
This colloquium isn't the only thing going on in environmental law though. Many folks tell me that they feel like there are more symposium than before and with increased use of calls for papers, more of an opportunity for err... the less than famous among us.. to participate. What I find most exciting though -- because they tend to be the most enriching-- are the recent spate of junior works in progress events. Two years ago, I attending a junior-only WIP hosted by Amanda Leiter at American. It was really excellent and helped me with my project (well help me decide to shelve that project, which sometimes can be the most helpful advice). This past summer I attended one at University of Washington with all junior papers and a mixture of junior and senior commenters. It was also excellent. Plus I heard good things about the Sabin Colloquium for Junior Scholars at Columbia. It is just an excess of riches. I am not sure what has caused this sudden burgeoning of programs but I gotta say that I like it! Here is one more to add to your list:
LEWIS & CLARK LAW SCHOOL
NATURAL RESOURCES AND ADMINISTRATIVE LAW JUNIOR SCHOLAR WORKSHOP
CALL FOR PAPERS
Lewis & Clark Law School invites submissions for its inaugural Junior Scholar Workshop to be held at Lewis & Clark Law School on Saturday, April 12, 2014. At the workshop, four junior scholars will present their works-in-progress before eight senior scholars. Each junior scholar will receive written feedback from at least two senior scholars. In addition, each junior scholar will have one hour to present and discuss her or his paper with the senior commentators and other workshop participants.
About the Workshop
The workshop aims to promote dialogue between law faculty interested in natural resources and administrative law topics. It also aims to provide junior faculty the opportunity to present their works-in-progress to experts who can offer constructive and thoughtful feedback in a collaborative environment.
The senior scholars who will participate in this workshop have a wealth of expertise in natural resources and administrative law. They are: Peter Appel (Georgia), Eric Biber (Berkeley), Michael Blumm (Lewis & Clark), Robert Glicksman (George Washington), John Nagle (Notre Dame), Mark Squillace (Colorado), Janice Weis (Lewis & Clark), and Sandra Zellmer (Nebraska).
Scholars are invited to submit papers related to natural resources and administrative law. Topics may focus on wildlife law, public lands law and use, protected areas, water law, and other associated topics, as well as administrative law.
Lewis & Clark Law School will pay hotel expenses for two nights. Junior scholars are also invited to attend Lewis & Clark’s symposium, The Wilderness Act at 50, which will take place on April 11, 2014, the day before the junior scholar workshop.
For the purposes of this workshop, “junior scholars” include law professors with no more than 7 years’ teaching experience. Junior scholars who wish to participate in the workshop should submit papers that are 30-50 pages in length (double-spaced text using 12-point font, with single-spaced footnotes using 10-point font) and include an abstract of no more than 200 words. Scholars may submit papers that have been accepted for publication so long as the scholars can still revise the papers in response to workshop feedback.
Submissions are due by February 10, 2014. Please email all submissions and direct any questions to Melissa Powers, firstname.lastname@example.org. Submissions should include your name, institutional affiliation, telephone number, and email addresses.
- Jessica Owley
Tuesday, October 1, 2013
Recently, law blogs (at least the few that I read) have been abuzz with discussion of the recent draft report of the ABA task force on "The Future of Legal Education." That report has some less-than-flattering things to say about the motivations of law professors. The resulting discussion often circles back to an old critique: that we write things that aren’t particularly useful for people in the non-academic world. But academia’s independence also has fierce defenders. They argue that if we commit ourselves to writing things of immediate value to practitioners, we’ll fail to consider systemic issues with our legal system and society, and instead will unwittingly become enablers of the status quo. Implicit in both critiques is the premise that there is an inherent tension between academic and practitioner expectations for scholarship. But I wonder if that tension really is so inherent, and I have a practical suggestion for avoiding, or at least reducing, it.
The suggestion is straightforward: at the outset of any research project, we academics ought to spend some time discussing the project concept with practitioners (including non-lawyers) in the field we’re planning to write about. I’ve done this with several of my research projects, and it’s been rewarding in several ways. First, it lets me tap into practitioner knowledge, which is particularly helpful if, as is usually the case, there are practitioners who know a lot more about my subject than I initially do. Second, and relatedly, it lets me know what questions practitioners are struggling with. If I can help answer those, my work will be more useful to them. Third, it alerts people in the field that I’m working on their area of interest. Often they’ll follow up with me later if they hear about something relevant, and sometimes the initial contact has led to non-academic presentation opportunities, which then can open new discussion and feedback loops.
To people who argue that legal scholarship should be more useful to practitioners, that may sound good, but the proponents of academic independence might have a concern: wouldn’t these conversations tend to make scholarly work narrower and more anchored to the status quo? To a small degree, the answer is yes; often ideas that sound appealing in the abstract suffer when they collide with day-to-day realities, and one result of these conversations usually is to compel qualification of whatever hypotheses I began with. But that’s not a bad thing. One purpose of scholarship is to get people to think or act differently, and that’s hard to do if they can easily dismiss you as naïve. Also, I’ve found that the resulting changes usually are subtle. Practitioners, in my experience, often want an academic perspective on the issues they work on. They’re often excited when someone has time to compile a broader database that they would ever have time to collect themselves, to think systemically about issues they confront in piecemeal fashion, or to integrate their day-to-day experiences into broader theoretical frameworks.
Of course, this is not an original suggestion. It’s something many academics already do, and it helps explain why, despite all the critiques, there is quite a lot of useful thinking in academic work. This approach also doesn’t work for every project. But I’d still suggest that for most projects, early outreach ought to be standard practice. The relationships between academics and practitioners can be highly symbiotic, and talking at the outset of a research project is a good way to build that symbiosis.
- Dave Owen
Going to Seed: Urban Agriculture in Distressed Cities
The Law Review of the University of Detroit Mercy School of Law invites proposals for its 2014 Symposium, “Going to Seed: Urban Agriculture in Distressed Cities,” scheduled for Friday, March 7, 2014. This symposium will bring together both national scholars and local leaders to assess the role urban agriculture plays in the economic recovery of economically distressed cities such as Detroit, Cleveland, and Philadelphia. Symposium organizers invite proposals for presentations and panels for the event. Any topic related to urban agriculture will be considered; topics that dig into the ground-level details of current urban farming efforts in major American cities are especially welcome. Relevant topic ideas could include regulatory issues such as zoning; permitting, water access, use, and discharge; chemical use and runoff, and developing physical and commercial infrastructure; as well as unique issues such as integrating agricultural animals into residential neighborhoods; food security and sustainability as a political, social, or theological priority; public and private liability for negligent or harmful agricultural practices; effects of urban agriculture on fundamental property law concepts, including, e.g., encroachment, boundary issues, nuisance, restrictive covenants, or eminent domain; as well as creative, outside-the-box topics that connect with urban agriculture and economic recovery in new ways.
Special Features: Scholars whose proposals are accepted will be invited to join Symposium organizers for a tour of local urban agriculture projects.
Deadline: E-mail submissions of 500 words or less must be received no later than Monday, December 2, 2013, and should be directed to Ms. Gerta Rapo, Law Review Symposium Editor, University of Detroit Mercy School of Law / Law Review, at email@example.com. Accepted proposals will be considered as possible publication topics for a special symposium edition of the UDM Law Review; editorial staff will follow up with selected speakers regarding the details and deadlines for publication.
Additional Info: Questions regarding the Symposium or the proposal process should be directed to Law Review Symposium Editor Ms. Gerta Rapo, firstname.lastname@example.org, University of Detroit Mercy School of Law / Law Review, 651 E. Jefferson Ave., Detroit, MI 48226 (ph. 313-492-6318).
Thursday, September 26, 2013
The University of Missouri - Kansas City (UMKC) School of Law is seeking nominations and applications for the Edward A. Smith/Missouri Chair in Law, the Constitution and Society. The School is especially interested in applicants with strong backgrounds in Environmental Law, State and Local Government Law, Urban Law, or Property Law. It is expected that the holder of the Chair will make significant contributions to student learning and scholarship, and will be an active leader in bringing creative solutions to the legal and social problems of the wider community. The Chair was established in honor of Edward A. Smith, whose distinguished career exemplified the use of law as a tool for shaping a better society.
The School of Law was founded more than 100 years ago and is located in the beautiful Country Club Plaza area of Kansas City, a diverse metropolitan area of more than 2.3 million people. The School provides its approximately 500 students with a comprehensive, affordable legal education supported by a collaborative and dedicated faculty, uses a personalized admissions process, and enjoys strong community and alumni support. The School is housed in a technologically sophisticated building on a landscaped and vibrant campus. The UMKC School of Law is the only law school in Kansas City, and is one of two law schools in the University of Missouri system.
Nominations and questions may be directed to Professor Doug Linder, LinderD@umkc.edu, (816)235-2375. To apply, please submit an application through http://www.umkc.edu/hr/career-opportunities/default.asp
Applicants should submit a cover letter, CV, and other materials the applicant wishes to be considered, before October 15, 2013. Applicants who are not U. S. citizens must state their current visa and residency status.
The University of Missouri-Kansas City recognizes that a diverse faculty, staff, and student body enriches the educational experiences of the entire campus and the greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and to making every attempt to support their academic, professional and personal success.
The University of Missouri-Kansas City is an Affirmative Action, Equal Opportunity Employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.
Wednesday, September 25, 2013
Last week, E&E News reported a breakdown in talks over EPA’s long-delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a new timeline.
The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system. There are several key reasons for those challenges.
First, urban stormwater problems generally arise from the combined runoff of very large numbers of properties. That makes an individual permitting approach, which has been quite successful for discharges of industrial and wastewater treatment plant effluent, hard to use; writing permits for millions of landowners probably isn’t administratively or politically feasible. Urban stormwater therefore requires alternative regulatory structures, but coming up with effective ones hasn’t been easy.
Second, stormwater raises some interesting federalism issues. Many of the most promising solutions involve land use planning, and regulation of land use has long been the third rail of environmental law (I’ve argued elsewhere that it shouldn’t be, and that federal law can be a positive influence on local land use decision-making, but the political realities remain challenging). The Clean Water Act and EPA’s existing regulations dance around that challenge, at least to some extent, by requiring medium and large municipal stormwater systems—known in CWA parlance as MS4s—to serve as the National Pollutant Discharge Elimination System (NPDES) permit holders for the systems they manage. That obligation creates a semi-cooperative federalism scheme, in which municipalities must regulate the private and public properties that discharge into their systems. But in my conversations with municipal stormwater managers, I’ve heard a lot of frustration with that system. They generally feel that their obligations are ambiguous; that it’s unfair for them to bear those obligations while less developed areas remain outside the permitting program; and that, even if the obligations were more clearly defined, they just don’t have the money to put a more robust regulatory program into effect.
As that last complaint suggests, lurking behind all these challenges are cost issues. Those issues don’t apply to all stormwater regulation. In fact, minimizing stormwater impacts in an undeveloped watershed actually can be quite cost-effective, even if one ignores the harder-to-value environmental benefits that cost-benefit analysis often excludes. Many of the best fixes involve integrating vegetated spaces into landscaping and consolidating development—in other words, doing many of the things that smart growth advocates have promoted for a variety of other sensible reasons. Consequently, a stormwater-sensitive development can actually be a very nice place to live or work. But compelling that sort of development would push EPA further into the realm of land use planning, where, for issues related to politics and federalism, it may be reluctant to go. Instead, the Clean Water Act’s regulatory structure focuses on waterways that already are impaired and on landscapes that already are developed. There are obvious benefits to that approach: among others, developed watersheds typically have more people, less anti-regulatory politics, and higher-value real estate, which means more of a constituency for watershed restoration and more money to support it. But it also means focusing on some of the most expensive fixes.
This all leaves EPA in a bind. In its settlement, it made the following commitments (in addition to many others not directly related to the stormwater rulemaking):
By September 30, 2011, EPA will propose a regulation under section 402(p) of the Clean Water Act to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites. As part of that rulemaking, EPA will also propose revisions to its stormwater regulations under the Clean Water Act to more effectively achieve the objectives of the Chesapeake Bay TMDL. In developing the proposed rule, EPA will consider the following elements related to stormwater discharges both nationally and in the Bay watershed: (1) additional requirements to address stormwater from newly developed and redeveloped sites; (2) requiring development and implementation plans by MS4s to reduce loads from existing stormwater discharges; and (3) explanding the definition of regulated MS4s. EPA will take final action by November 19, 2012.
That all sounds sensible, and many stormwater managers would agree that these are important next steps. But they also involve ratcheting up pressure on municipalities and extending EPA further into the role of regulating new development. Neither step, at present, is an easy sell.
Nevertheless, in this arena, as in many regulatory arenas, there are promising innovations that might alleviate a bit of the difficulty. One example comes from the city where I teach. Portland, Maine is currently in the process of developing a stormwater fee program. The fees will be pro-rated to the amount of impervious cover owned by each landowner, with reductions available to landowners who take steps to reduce the impacts of their stormwater runoff. In the short term, that funding will provide city managers with a pool of money they can use to address combined sewer overflows and other major stormwater challenges. It also will generate that money equitably, with people and entities who contribute a larger share of the problem contributing more to the solution, but with everyone—small landowners included—chipping in. In the long term, the city hopes that the persistent pressure of an economic signal can change the ways people develop, redevelop, and manage their land. If it works, the program could demonstrate that urban stormwater is a more tractable problem than people have traditionally thought, and that the increased regulatory controls that EPA may yet seek actually can be implemented in ways that are equitable, efficient, and, ultimately, successful.
Portland’s story also highlights a potential role for those of us who teach environmental subjects, including law. According to the municipal staff I’ve talked to (in Portland and other surrounding cities), one of the biggest challenges of local stormwater regulation is education. They may care quite deeply about environmental quality, but most people just don’t understand urban hydrology, stormwater pollution, or stormwater law, and they’re often baffled by proposed regulatory responses. For a city implementing a stormwater fee program, one of the largest challenges is public education. But teachers can help. I suspect urban stormwater occupies a minor place in most environmental law syllabi, and studying the ecology of urban environments has not been ecologists’ traditional focus. But if we spend even a little more time teaching about urban water quality, we’ll educate our students about a very important public policy issue—and an issue to which many people, both in and outside of the legal field, devote many hours, billable or otherwise, every day.
- Dave Owen
Monday, September 23, 2013
You can see the full application description here.
And here is a summary of the position duties and responsibilities:
The successful candidate will be a full time member of the tenured or tenure track faculty and will direct the Law School’s Environmental Law Program. His or her primary teaching, scholarship, and service responsibilities will center on the areas of environmental and administrative law. As Director of the Environmental Law Program, the successful candidate will oversee the Law School’s certificate program in Environmental Law, and develop and manage the Program’s curricular and extra-curricular initiatives relating to environmental law and policy. Environmental law is conceived broadly to include natural resources law, wildlife law, environmental law, land use law, and other subjects bearing on environmental sustainability at the local, regional, national, and international levels.
- Blake Hudson
Tuesday, September 17, 2013
Many thanks to Blake Hudson for inviting me to join the Environmental Law Profs blogging crew for the next few months. As many of you already know 2 or 3 of you may know, I blog regularly (err... lately maybe irregularly is the better term) over at Land Use Profs. I love the land use gang, but often feel like a bit of interloper because of my lack of land use cred. I plan to continue my blogging there but hope to use this forum to discuss intriguing issues that don't fall as squarely into the land use box.
I'd like to take this chance in my first post, however, to welcome all the new environmental law professors joining our ranks this year. Last year, Kalyani Robbins worked with a research assistant to gather information about environmental law professors across the United States. While Kalyani and I never quite got around to writing the article that we planned regarding the results, one remarkable thing was clear -- there are a lot more environmental law professors out there than people realize. Moreover, there is a big category of untenured folk. The research identified 510 environmental law professors, with 101 untentured tenure-track faculty. This number does not include those junior scholars out there who have not yet entered the tenure track, like folks currently on the market, people working as VAPs, fellows, etc. One of the things we realized during our research and discussions into these issues, is that many of these junior scholars toil away in solitude -- not always having funding to travel to conferences or having good guidance about making connections and finding colleagues.
In an attempt to at least create some virtual connections, a few of us created a listserv for junior environmental law and land use scholars (plus we have some property and indian law folk chiming in periodically). This smallish community can serve as a good sounding board for silly questions, arranging meet ups at conferences, and getting to know each other. It is not a replacement in any way of the superior (and much larger) listserv managed by John Bonine (if you are an environmental law scholar and not on that listserv, you should get on it -- email John). I think I was teaching for a year before I even knew about that listserv...
Anyhoo.... at the beginning of this new school year, I would like to invite junior faculty (and faculty hopefuls) to join our list by dropping me a line (email@example.com). If you have a junior environmental law person at your school, take a minute to point them to these listservs (and this blog! I think I was teaching for a year before I even knew about John Bonine's listserv.
For those of you with tenure, consider volunteering to read a junior paper or two each year. To facilitate these paper exchanges (which we run through the listserv), simply fill out this survey.
The New York Times today reported potentially encouraging news from a collaborative study out of the University of Texas: methane leakage rates from hydraulically fractured shale gas wells might be lower than previously estimated EPA rates. The study emerged from a combined effort of gas companies, the Environmental Defense Fund, an independent Scientific Advisory Panel, and academics. It finds that methane emissions from the flowback process--when hydraulic fracturing fluid and some gas (methane) flows back out of the well--range from 0.1 Mg to 17 Mg (with a mean of 1.7 Mg of methane released and "75% confidence bounds of 0.67-3.3 Mg"), as compared to previous EPA estimates of an average of 81 Mg per flowback event. Emissions from pumps and other equipment at well sites, on the other hand, are "comparable to and higher than" EPA estimates. In total, methane emissions from activities at the wellhead might represent "0.42% of gross gas production." These findings are important because organizations like EDF believe that methane leakage rates from the rapidly-growing shale gas resource must be 3.2% or lower for gas to provide a climate advantage over new coal-fired power plants.
But we are not out of the weeds yet. This EDF, university, and industry-led study is only one of approximately 16 studies planned to be published in academic journals by 2014, and the study only addresses leakage at the wellhead. The amount of methane leakage through the entire natural gas system, from production to "gathering & processing, long distance transmission & storage, local distribution, and transportation," is still a murky number.
In addition to lacking definitive evidence that system-wide methane leakage is below 3.2%, we also must understand the limitations of the wellhead study. The study makes excellent progress within the methane leakage debate because it measures actual leakage rates from "150 production sites, 27 well completion flowbacks, 9 well unloadings, and 4 workovers," including 489 hydraulically fractured wells in several regions. But as with any study that must rely on industry cooperation to access data, there is a concern that the researchers measured industry best practices. It is possible, in other words, that the industry actors most willing to participate in the study were those that already used the best methane capture technology and practices and were least worried about the results. Indeed, the study notes that the "dataset is designed to be representative of the participating companies' activities and practices, but not necessarily all activities and practices."
It is not yet clear that the EPA-estimated 25,000 wells fractured or refractured each year use methane capture practices as beneficial as the 489 hydraulically fractured wells in the study. The authors of the Texas-led study indicate that "[m]ultiple methods were used to minimize the potential for bias in the sample set," and they provide a detailed appendix of the study scope and method. The appendix indicates that "[r]epresentative sampling was believed to be achieved by: [s]electing a large number of companies, [s]electing a range of geographic areas to sample," and "[s]electing [a] minimum number of sampling targets in each area." But the appendix shows that the nine mid-size and large companies that participated in the study "account for almost 12% of all U.S. gas wells," "16% of gross gas production," and "almost half of the new well completions." Although this represents a sizeable chunk of industry, it might also represent the most cooperative and progressive chunk. There is some indication that not all companies are amenable to the types of methane capture practices used by these companies. The American Petroleum Institute has complained about the costs of new EPA Clean Air Act rules that will require methane capture or flaring (burning off of gas) similar to the practices used at the 489 wells studied by the University of Texas team. It worries that the "reduced emissions completion" (REC) technologies necessary to achieve this capture rate will not be available in the numbers needed and will slow down drilling and fracturing.
We also need to think about the broader climate impacts of gas, as noted by Patrick Parenteau & Abigail Barnes and others. Although we know that the displacement of coal with gas has benefits far beyond (apparent) greenhouse gas reductions, there is the broader threat of what the Natural Resources Defense Council calls a "fossil fuel lock-in" (link is to video archives of a National Research Council presentation by Kate Sinding of NRDC). The existence of abundant, cheap natural gas threatens to distract us from implementing energy efficiency and renewable energy projects at a rapid rate. MIT researchers have noted that the focus on gas slows down and in some cases stops innovation in areas like carbon capture and sequestration, and the International Energy Agency reminds us that gas is not enough to meet climate goals like stabilizing global temperature rise to 2 degrees Celsius. To make real progress on climate issues, we must rapidly invest in fossil fuel alternatives while continuing to achieve systemwide reductions in methane leakage from gas operations.
Thursday, September 12, 2013
It is our pleasure to welcome Jessie Owley as a guest editor on Environmental Law Prof Blog.
Below is a snippet from her faculty page. Welcome Jessie!
Jessica Owley teaches environmental law, property and land conservation. She joined the SUNY Buffalo Law in 2010 after serving as an assistant professor at Pace Law School. She received her Ph.D. in environmental science, policy and management from the University of California-Berkeley in 2005, shortly after completing her J.D. at Berkeley Law in 2004.
Before entering academia, Owley practiced in the Land Use and Environment Law group at Morrison & Foerster in San Francisco. Prior to private practice, Owley clerked for Hon. Harry Pregerson of the Ninth Circuit Court of Appeals and Hon. Dean D. Pregerson of the Central District of California. Owley is a member of the California bar and admitted to practice in the Northern, Southern and Eastern districts of California and the Ninth Circuit.
Owley's teaching interests are in the areas of property, environmental law, administrative law and Indian law. Though her general research is on land conservation and property rights, her current scholarship focuses on using property tools for conservation in the context of climate change.
- Blake Hudson
Wednesday, September 11, 2013
From the University:
The University of Montana School of Law invites applications for tenure-track Assistant or Associate Professor of Law position teaching Property Law. The position is a ten-month contract beginning fall semester 2014. To view full job descriptions, minimum requirements needed, and to apply, go to http://university-montana-hr.silkroad.com/epostings/. ADA/EOE/AA/Veterans Preference.
- Blake Hudson
I agree with Dave Owen’s recent post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions. He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities. He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots. Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.
I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels. Even if a GHG trading program would not cause an industrial hotspot – would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.
I start by acknowledging Adelman’s valuable insights about industry’s relative role in air toxics pollution. Because Adelman’s concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry’s absolute and relative contribution to air toxics pollution. He defines a county-wide industrial hotspot by industry’s absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million. He defines a census tract industrial hotspot where industry’s absolute contribution to cancer risk exceeds 20 per million and industry’s relative contribution is at least 30% of total air toxics emissions. Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics. Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions. But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.)
Adelman demonstrates that the paucity of industrial toxic hotspots has important implications for GHG trading programs. First, because mobile and nonpoint sources dominate air toxics pollution in most of the country, GHG trading is unlikely to cause large percentage shifts in communities’ exposure to air toxics. As Adelman notes (and Dave Owen’s recent blog post highlighted), if industry contributes 10 percent of a locality’s toxic emissions and a GHG emissions program requires a 20 percent emissions reduction, then imposing that reduction requirement directly on the local industries would garner only a 2 percent reduction in toxic emissions. Thus, a GHG trading program that lets facilities purchase allowances instead of reducing emissions would forego only a 2 percent reduction in local toxic emissions.
A second valuable insight about industry’s limited relative role is that, in most instances, GHG trading is unlikely to increase racial inequities in air toxics exposure. That stems, in part, from industry’s relatively minor contribution to cumulative air toxic risks. Because trading is unlikely to substantially affect relative levels of air toxics cancer risks, it is unlikely to substantially shift the racial distribution of exposures. And in the small number of census tracts where industrial emissions do play a substantial role in air toxics risks, he observes that the racial disparities are slight, so that a GHG trading program’s emissions patterns would not lead to increased racial inequities in risk distribution.
Adelman’s analysis addresses key environmental justice concerns about distributional equity. The analysis does not, however, address one additional issue that is also important to the debate about GHG trading program’s and toxic hotspots: the significance of co-pollutant reductions on absolute pollution levels, even if industrial emissions are not the dominant source of emissions and the trading program would not lead to large percentage shifts in air toxics levels. In other words, one additional issue to consider is the importance of any reductions – even small reductions – in severely polluted areas. In highly polluted areas, the concern is not just whether trading will cause hotspots, but whether trading will eliminate opportunities to achieve incremental reductions in serious cumulative harms.
To identify areas where GHG trading could potentially make a significant difference in toxic emissions and, therefore, affect the relative distribution of pollution, Adelman rightly focuses on industrial hotspots: the counties and census tracts where industrial emissions most affect air toxics levels. As he notes, however, the focus on industrial hotspots does not correspond to toxic hotspots more broadly, since the nation’s most toxic hotspots are primarily caused by mobile and nonpoint sources, not industrial sources. He observes that, because “large populations and high population densities” generate high air toxics emissions from mobile and nonpoint sources, they “all but foreclose the emergence of industrial hotspots in metropolitan areas where the cancer risks from air toxics are typically the highest.” (322) Industrial hotspots typically appear only in places that combine highly toxic industries (generating significant industrial emissions) with small, low density, populations that generate relatively few mobile and small point source emissions.
Therefore, although assessing a GHG trading program’s impacts on industrial hotspots tells us where a GHG trading program covering industrial sources could have the biggest percentage impact on air toxics emissions, that analysis does not address a trading program’s impacts on areas experiencing the highest levels of air toxics pollution. To assess the value of achieving co-pollutant reductions, it is important to consider not only the percentage reductions that could be achieved or the distributional equity implications of those reductions, but also the importance of achieving reductions in absolute levels of pollution.
To see this more clearly, imagine two census tracts. Tract 1 is in a rural, low-density, region. A steel mill there poses a cancer risk of 20 per million and contributes 50 percent of the census tract’s overall air toxics risk of 40 per million. Under Adelman’s analysis, Tract 1 would qualify as an industrial hotspot because industrial sources pose a risk of at least 20 per million and industrial sources contribute more than 30 percent of the tract’s overall air toxics risk. If a GHG reduction program required a 20 percent decrease in emissions, and facilities in that area chose to purchase allowances rather than reduce emissions, then that area would forego reducing cancer risks by 4 per million, forgoing a 10 percent reduction in cumulative air toxics pollution that could otherwise have been achieved. (The 10 percent reduction is calculated as follows: A 20 percent reduction of the 20 per million cancer risk would lead to a reduction in risk of 4 per million. Reducing Tract 1’s air toxics risk from 40 per million to 36 per million is a 10 percent overall reduction in risk. Note that, for purposes of explanation, this example is highly simplified and likely exaggerated; it assumes that a facility would purchase allowances rather than reduce emissions and that GHG and co-pollutant emissions are perfectly correlated.)
In contrast, assume Tract 2 is in a dense urban environment that more closely resembles Los Angeles than Tract 1’s rural character. Assume several industries pose a cancer risk of 10 per million and contribute 10 percent of the census tract’s overall air toxic risk of 100 per million; the other 90 percent of the air toxics risk stems from mobile and nonpoint sources. Tract 2 would not qualify as an “industrial hotspot” under Adelman’s definition because industry contributes less than 20 per million to the overall cancer risk and because industry contributes less than 30 percent to the tract’s overall risk level. Assuming a twenty percent GHG reduction requirement in Tract 2, and assuming that local industries purchased allowances rather than reducing emissions, Tract 2 would forego reducing cancer risks by 2 per million, foregoing a 2 percent reduction in cumulative air toxics pollution that could otherwise have been achieved. (The 2 percent reduction is calculated as follows: A 20 percent reduction of the 10 per million cancer risk could reduce air toxic risks by 2 per million. Reducing Tract 2’s air toxics risk from 100 per million to 98 per million is a 2 percent overall reduction in risk.)
Adelman’s analysis of industrial hotspots helps us see that a GHG trading program could make the most relative difference in associated air toxics emissions in Tract 1 because there it could cause Tract 1 to forego a 10 percent emissions reduction, whereas in Tract 2, where industrial emissions are a smaller component of overall emissions, the trading program would cause Tract 2 to forego only a 2 percent reduction. In Tract 1, there is a greater possibility that the foregone reductions could change that tract’s degree of air toxics pollution relative to other areas, and cause racial inequities to the degree Tract 1 is located in a disproportionately minority area.
These insights address key equity questions, as measured by relative pollution levels. But a trading program’s role in alleviating absolute pollution levels, not just its impact on relative pollution levels, is also relevant to the discussion of GHG trading and hotspots. The cumulative toxics risk in Tract 2 is 100 per million, substantially more than the 40 per million in Tract 1. Of course, reductions in both tracts are important, but the 2 percent reduction in Tract 2 could be as or more important than the 10 percent reduction in Tract 1. Though the smaller percentage reduction in Tract 2 will not strongly affect relative pollution levels and is unlikely to change distributional equity, the reduction could be more important to the impacted communities in Tract 2 than in Tract 1. The difference in Tract 2 (reducing the cancer risk from 100 to 98 per million) might be less dramatic than in Tract 1 (reducing the cancer risk from 40 to 36 per million), but arguably the need for reductions is greater in Tract 2 than in Tract 1.
Wherever harm is caused by cumulative sources, incremental reductions from any one source, particularly a smaller source, will not lead to substantial changes in overall emissions. But one factor in considering the importance of the reduction is the extent of the need for the reduction, not only the relative change in emissions or its impact on distributional equity. Residents subject to multiple sources of pollution hope for reductions from all sources, even if the reductions achieved by any one source cannot, by definition, solve the entire problem. The presence of high emissions from mobile and nonpoint sources should not minimize the value of industrial emission reductions in the most seriously polluted areas.
A focus on the impacts of trading on industrial hotspots provides important insights that contribute substantially to the debate about GHG trading and hotspots, but its limits in fully resolving that debate are revealed by the article’s suggested regulatory fix. In order to mitigate the risk that a GHG trading program could lead to significant shifts in relative pollution in the limited numbers of industrial hotspots he has identified (most of which are rural, low-density communities where a single industry causes most of the air toxics pollution), he identifies modifications to a cap-and-trade program to reduce the risk of adverse shifts in emissions. His suggested solution addresses the role of a GHG trading program in causing industrial hotspots. But it does not address the impact of trading on toxic hotspots that are not primarily caused by industry. If we are going to modify a GHG emissions trading program to address co-pollutant consequences, should that effort be focused on these areas, rather than the areas experiencing more intense air toxics pollution? True, protections in industrial hotspots are likely to have a greater relative impact on pollution than they would in areas suffering from many sources of pollution. But it’s not clear that this approach would target improvement where it’s most needed.
To be clear: I am not suggesting that a GHG trading program or carbon tax should not be adopted because of its co-pollutant drawbacks relative to more direct regulatory measures. This dialogue concerns only the distributional impact of GHG trading on co-pollutants. As I have written elsewhere, a full analysis of a trading program’s co-pollutant implications must also consider other dimensions to the choice between market-based and traditional regulation, including relative stringency, relative flexibility, enforceability, participatory opportunities, and other factors, some of which might (or might not) provide counterveiling co-pollutant benefits. In addition, other benefits of a GHG trading program or carbon tax could potentially outweigh the co-pollutant considerations articulated here. And, if politically viable (a big “if”), more aggressive efforts to reduce mobile and nonpoint air toxics could be more effective than attempting to achieve co-pollutant reductions through a GHG trading program, particularly if that effort were to adversely impact the viability of GHG control efforts. I write, instead, simply to add another dimension to the discrete debate about GHG trading and air toxic hotspots: a trading program’s impact on cumulative pollution in the nation’s most polluted areas.
- Alice Kaswan
Monday, September 9, 2013
This weekend, as I was driving back from a trip out of town, I had to turn around and take a picture of this church sign in Dumas, Arkansas:
I thought this was quite a salient metaphor for the most likely impending environmental disaster of our time, climate change. People thought Noah was crazy for building the Ark - for preparing for the worst case scenario that he felt pretty sure was coming. "Does it look like it's raining to you?" they said (paraphrasing). "Come on, a flood? That will wipe out society? No way that is going to happen" they said. And then the flood came.
I would quip that one of Rush Limbaugh's ancestors would have been among those who said these things to Noah, but since everyone but Noah's family was wiped out, I suppose that is impossible. But recently, two evangelical climate scientists (Katharine Hayhoe from Texas Tech and Thomas Ackerman from Washington) called out Rush Limbaugh for spreading the idea that faith and science are irreconcilable. They were responding to Limbaugh's recent comment on his show that "If you believe in God, then intellectually you cannot believe in man-made global warming." The scientists stated that:
"Rush's uninformed rhetoric is demeaning to Christians who care deeply about what humans are doing to God's Creation and ignorant of the consequences that future generations will face if we don't respond quickly to the challenge of climate change."
They made a number of other sound biblical arguments supporting environmental protection, and noted that:
"While our expertise allows us to understand the complexity of a changing climate and its causes, it is our faith that compels us to speak out and motivates us to push forward despite the opposition from voices like Rush Limbaugh and gridlock in Washington...We were appalled at the ignorance behind Rush Limbaugh's statement but we weren't surprised . . . This isn't meant to invoke pity, but rather to highlight the absurdity of our public debate around faith and climate change. Rush Limbaugh has a very big megaphone but no expertise or formal credentials to be considered an expert on the changes in climate occurring all around us. He has no theological training or record of leadership within a faith community. He's simply a radio show host willing to say controversial things, regardless of whether they are true or not."
I couldn't agree more with Dr.'s Hayhoe and Ackerman. But when I saw this church sign, it reminded me of the arguments that climate skeptics put forth seemingly based upon not being able to see today the full effects of the precipitous amounts of carbon that we have pumped into the atmosphere over the last 150 years (or based on fundamental misunderstandings of climate science: "it was a record low in Charlotte, North Carolina today. Global warming? Yea right!"). It wasn't raining when Noah built the Ark, but in an exercise of some Old Testament precautionary principle, Noah built his Ark anyway. In the same way, we can model with a high degree of certainty the impacts of increasing carbon concentrations in the atmosphere at the rate that humans have. We should take precautionary action accordingly, even if - and especially if - it is only future generations that will bear the full brunt of climate change's effects.
The Bible is replete with mandates to protect future generations. In rejecting the basic science of climate change, or even the science of the environment more generally - and our dependence upon it - far too many conservative christians are in the business of maximizing their short-term welfare to the detriment of their children's children. Noah didn't do that. He invested (his detractors would say "wasted") a lot of money and time in building the Ark. He incurred a short term economic cost in order to preserve his children's future. Christians would be wise to do the same - it is after all, a mandate of the Bible.
"Increased hurricane frequency and intensity? Yea right. Miami and New York City under water? That can't happen. Economy crumbling because society cannot adapt as quickly as the climate is changing? You're crazy." But it wasn't raining when Noah built the Ark.
- Blake Hudson
Sunday, September 8, 2013
The City of Forth Worth embarked on an ambitious bike sharing plan last April with the assistance of a $1 million federal grant. Just last month, it received another grant--- this one for $550,000 from the Texas Department of Transportation---to expand the program.
While praised here in Fort Worth (and in many other cities) as (1) an extension of bus and rail systems and (2) inspiring a sense of community, noted property scholar Stephen Clowney (Kentucky) over at Property Prof Blog is one of several commentators who have critiqued such programs on efficiency grounds (see, e.g., here and here).
The Portland (OR) Bureau of Transportation website includes an information page titled "What We Have Learned from Other Cities." The page includes a list and the basic parameters of existing bike share programs in the U.S.
-Tim Mulvaney (firstname.lastname@example.org)
Friday, August 30, 2013
From Texas: Attempting to Deal Rationally with Limited Water Supplies is a Regulatory "Taking" of Private Water Rights
The Texas courts are once again refining their description of private water rights. On Wednesday (August 28, 2013), the Texas Court of Appeals in San Antonio confirmed that implementation of the Edwards Aquifer Act resulted in a constitutional "taking" of landowners' property rights in groundwater. Edwards Aquifer Authority v. Bragg, --- S.W.3d ---, 2013 WL 4535935 (Tex. App.--San Antonio Aug. 28, 2013). More disturbing than the actual decision, however, is its implications for state authorities trying to deal rationally with increasing water shortages.
Some background is in order, because EAA v. Bragg is the first application of the Texas Supreme Court's 2012 decision that overlying landowners in Texas own groundwater in situ. Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012). Many of us who teach Water Law would argue that EAA v. Day represented a radical departure from both traditional Texas groundwater law, which uses the English rule of capture, and the Edward Aquifer Act's possible creation of a correlative rights-type regime for the Edwards Aquifer. But hey, I'm not the Texas Supreme Court.
The Edwards Aquifer Act has a long and litigious history. The Texas Legislature enacted the Act in 1993 in response to increasing drought threats and Endangered Species Act litigation seeking to protect five listed species living (or trying to live) in the Edwards Aquifer. The Act created the Edwards Aquifer Authority and mandated a permit regime to limit withdrawals from the aquifer. As the Texas Court of Appeals explained in EAA v. Bragg, "In the Act, the Legislature established an aquifer-wide cap on water withdrawals by nonexempt wells of 450,000 acre-feet of water per year through 2007 and 400,000 acre-feet per year thereafter." 2013 WL 4535935, at *2. Moreover, "Under the Act, the Authority may grant initial regular permits ('IRPs') only to existing users who properly file a “declaration of historical use,” and who can establish, by “convincing evidence,” beneficial use of underground water withdrawn between June 1, 1972, and May 31, 1993." Id.
The Braggs own two properties overlying the Edwards Aquifer that are commercial pecan orchards. They have irrigated the pecan trees with two wells drawing water from the Edwards Aquifer, one drilled in 1980 and one drilled in 1995 as authorized by a permit from the Medina County Groundwater Conservation District. The EAA was not yet issuing permits; because of lawsuits, the Act did not become effective until 1996.
When the Braggs applied to the EAA for permits in 1996, they claimed withdrawals of 228.85 acre-feet of water per year from the 1980 well and 193.12 acre-feet of water per year from the 1995 well. Their permit authorized 120.2 acre-feet of water per yeard from the 1980 well and nothing from the 1995 well, the use of which was outside the historic period that the EAA could consider under the Act. The Braggs sued the EAA in November 2006, alleging a constitutional taking of private property and a violation of federal civil rights. The state trial court found in their favor, concluding that no physical taking of their water rights had occurred but that nevertheless both the denial of water rights from the 1995 well and the reduction in water rights from the 1980 well constituted regulatory takings that required compensation.
The Texas Court of Appeals affirmed the takings liability but remanded for a re-calculation of the damages. First, it found that the EAA (as opposed to the State of Texas) was the proper defendant. Id. at *8. Second, it found that the statute of limitations was 10 years, id. at *10, and had not run because it did not accrue until the EAA acted on the Braggs' permit applications in 2004 and 2005. Id. at *13.
Third, with regard to the regulatory taking, the Texas Court of Appeals relied heavily on EAA v. Day, making short shrift of the EAA's argument "that the Act gave the Braggs something they did not previously own (permits) and, therefore, there is no taking . . . ." Id. at *14. With regard to the economic impact of the permit decisions (the first Penn Central factor for in the standard regulatory takings analysis), the court concluded that:
To reduce their water consumption, the Braggs reduced the number of trees by thirty to fifty percent and reduced the watering of the remaining trees. This, in turn, resulted in the Braggs' inability to raise a commercially viable crop on their properties, unless they purchased or leased water under the permit scheme. Despite what might amount to only a ten percent increase in their irrigation expense, we do not consider this merely an incidental diminution in value. The result of the regulation forces the Braggs to purchase or lease what they had prior to the regulation—an unrestricted right to the use of the water beneath their land.
Id. at *17.
With respect to the Braggs' investment-backed expectations, the court emphasized that they purchased both properties as pecan orchards before the Texas Legislative enacted the Edwards Aquifer Act. As a result, "Although the Braggs had no reasonable investment-backed expectation that there would never be a regulatory scheme in place that might govern their use of the water beneath their land, the lack of such regulations when they purchased both orchards shaped their expectation that they would have unrestricted use of their water to supply the needs of their pecan trees." Id. at *19. Moreover, "considering Mr. Bragg's extensive understanding of pecan crops, the Braggs' understanding that they owned the water under their land, and that no regulatory entity existed that governed the use of their water when they purchased the property as an existing pecan orchard, we conclude the Braggs' investment-backed expectations as to the D'Hanis Orchard were reasonable." Id. at *20.
Finally, with respect to the character of the government action, the Texas Court of Appeals acknowledged that groundwater regulation is a legitimate government purpose and that "[o]ne purpose of groundwater regulation is to afford each owner of water in a common, subsurface reservoir a fair share of the water." Id. Nevertheless, while this factor thus counted against finding a taking, the court emphasized the surrounding circumstances (i.e., drought) to conclude, on balance, that a regulatory taking had in fact occurred:
In this case, the Braggs' business is agricultural and therefore heavily dependent on water. The particular crop cultivated by the Braggs, pecans, needs water year-round. The Braggs' source of water is either sub-surface or rain. Rain, at least in drought-ridden Texas, is inconsistent and unpredictable. . . . This is especially so in semi-arid Medina County, Texas. Mr. Bragg's testimony established that a lack of sufficient water not only effects the yield of the current crop but also the quality and size of the pecans in a future crop. No expert disputed that rain alone could not provide a sufficient source of water. Therefore, we conclude the Act's restrictions on the amount of water the Braggs could draw from their own wells weighs in favor of a compensable taking.
Id. at *21.
With this declaration, I submit, the Texas Court of Appeals both has attempted to elevate historical water rights over new ecological realities and created a major legal impediment for any government entity trying to rationally address changing--especially declining--water resources. Endangered species or not, government regulation or not, overpumping the Edwards Aquifer and increasing droughts in Texas will eventually destroy the value of all private property claims to water (and maybe the value of all private property, period) in many parts of Texas. Instead of encouraging the Texas Legislature and the EAA to deal rationally with these new realities--including the reality that there just isn't enough water for everyone to do everything they want for the rest of their lives--the Texas courts have effectively forced the EAA to assume all costs of attempting to ameliorate the shortage.
Should the State of Texas or EAA callously let the Edwards Aquifer go dry? I'd like to argue "no"--but I don't think it should have to pay landowners who rush headlong into that disastrous result, either. Constitutional "takings" clauses need to accommodate changing ecological realities and the tragedy of the commons, or they will just make those tragedies worse. At one point, the common law recognized this hard reality through the doctrine of public necessity and police power defenses to takings liability, but those limitations on "takings" liability seem to have been forgotten.
So, the question we should all be contemplating: When does groundwater pumping become a public nuisance, or create a public emergency?
--Robin Kundis Craig, William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law
Thursday, August 29, 2013
Yesterday the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838). The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority’s regulatory restrictions on the Braggs’ groundwater use amounted to a regulatory taking. The appellate court agreed and remanded for an assessment of damages. But I suspect—and hope—the case will first be appealed to the Texas Supreme Court. It is a deeply flawed and harmful decision with mistakes that additional appellate review hopefully will fix.
Understanding those problems requires a little bit of factual context. The Edwards Aquifer is a large and highly productive aquifer in central Texas. It provides an important source of water for municipal and agricultural users, and its discharges support vibrant ecosystems, several of which contain unique and threatened or endangered species. But those competing uses came into stark conflict, and in the mid-1990s the Texas Legislature responded by creating the Edwards Aquifer Authority and charging it with regulating water withdrawals (for articles on that history, see here and here).
In 1979 and 1983, years before the Edwards Aquifer Authority’s regulatory scheme went into effect, the Braggs bought two parcels of land with the intention of growing pecans. Initially, their water needs were modest; young pecan trees are small and do not require much water. But as the trees grew, the Braggs sought regulatory authorization to increase their water use. The Edwards Aquifer Authority authorized a lower level of use than the Braggs wanted (according to the Braggs, the limits rendered their farming operation economically inoperable), and the Braggs sued, alleging a taking. The trial court ruled in their favor, and the current appeal followed.
Before getting to the problems with the court’s decision, it’s worth noting a few things the court did right. First, the court analyzed the Bragg’s claims using the regulatory takings analytical framework set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). The appropriateness of that analytical framework for this case might seem obvious, but in recent years some takings advocates have argued—on rare occasions successfully—that regulatory restrictions on water rights should be analyzed as potential physical takings. The Bragg court appropriately avoided that path. Additionally, I have no quibble with the court’s application of the nature-of-the-government-action prong of the Penn Central analysis. The court wrote that “[g]iven the importance of ‘protecting terrestrial and aquatic life, domestic and municipal water suppliers, the operation of existing industries, and economic development of the state,’ we conclude this factor weighs heavily against a finding of a compensable taking.” That seems rather sensible.
But the Edwards Aquifer Authority still lost. That’s primarily because of the court’s application of the other two Penn Central factors—the diminution in value and the interference with reasonable investment-backed expectations—both of which the court found weighed in favor of the Braggs. And it reached both findings largely because of a consistent and deeply flawed reason: in applying each factor, it simply assumed away the reality that the Edwards Aquifer is a limited, oversubscribed resource.
The court's diminution in value analysis illustrates that problem. That analysis reduces to a mathematical problem: the court’s job is to ask what the value of the property would have been without the contested restriction and what the value was with the restriction. The court purported to do that, but instead its denominator was the value of the property assuming the viability of the Braggs’ desired property use. In other words, the court simply assumed that without the restriction in question, the Braggs would have been able to use as much water as they wanted. When the time came to instruct the lower court on a damages formula, the court of appeals said the same thing: “we conclude that the ‘property’ actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard.” But even if the regulation had not existed, there was no guarantee that the Braggs could have withdrawn as much water as they wanted (unless, of course, the Braggs were the only landowners exempted from the Authority's regulatory scheme). The Edwards Aquifer does not have unlimited quantities of water, and the Braggs would have been in competition with every other user whose pumping might affect water levels beneath the Braggs’ land. In that competition, they might well have fared worse than they did under the EAA’s scheme, and at the very least they would have confronted greater uncertainty. Thus a more appropriate denominator would have been the value of the Bragg’s land in a legal environment of unfettered competition for a limited resource, with all the uncertainty and risk that entails.
The same problem applies to the court’s analysis of reasonable investment-backed expectations. Essentially, the court held that it was reasonable for the Braggs to invest in a large, water-intensive, long-term farming operation in reliance on pumping from a shared and strained aquifer. That does not seem like something a wise business owner would do, or that law should encourage businesses to do. Granted, at the time, no regulatory restriction limited their pumping, but that cuts both ways: it meant less reason to anticipate governmental restriction but also less reason to anticipate governmental protection from competing users. And even by the late 1970s and early 1980s, any reasonable expectation ought to have factored in the possibility that environmentally valuable resources would receive government protection. Yet the court’s analysis of reasonable investment-backed expectations discounts any factor other than the Bragg’s unilateral expectation that they would be able to pump whatever they needed.
The consequences of these errors are serious and far-reaching. A simplified hypothetical illustrates the problem. Suppose that 10 farmers own land above an aquifer with a sustainable annual yield of 1000 acre-feet of water. Suppose that each landowner wants to create a pecan farm, and each anticipates that the pecan farm, at maturity, will require 200 acre-feet of water per year. And suppose a regulatory body instead restricts each landowner to an equivalent share of the aquifer, so each instead receives 100 acre-feet per year. Under the valuation formula propounded by the Braggs and adopted by the court, each landowner has suffered a substantial diminution in value, and therefore could be entitled to takings compensation for a “lost” 100 acre-feet/year of water, even though all the regulator did was restrict their collective use to the amount of water actually available. If each landowners sues—and with this formula, they would be fools not to—the regulator will wind up paying compensation for “taking” 1,000 acre-feet/year of water that the aquifer never could have sustainably supplied anyway. On a larger and more complicated scale, that essentially is the reality of the Edwards Aquifer, and of a great many other aquifers—a fact that was not lost on the Texas Legislature when it passed the Edwards Aquifer Act. But that reality seems to have eluded the court.
To all of this, some readers might have a response: weren’t the court’s hands tied by Edwards Aquifer v. Day, 369 S.W.3d 814 (Tex. 2012)? In Day, the Texas Supreme Court held that landowners hold property rights in water beneath their land, and that restrictions on those water rights could create compensable takings. But that holding doesn’t inexorably lead to kind of analysis the Bragg court used. As I’ve argued in much more detail in a forthcoming article, Day's holding is not unique; most states that have considered the issue consider groundwater use rights to be property rights with potential constitutional protection against takings. Yet other states also have repeatedely held that the exercise of those rights may—indeed should—be substantially regulated without any need for the state to pay compensation. Even in Texas, which has a partially-deserved reputation for particularly lax groundwater use regulation, court cases—including the Day decision itself—contain abundant language acknowledging the important governmental role in regulating groundwater use. So, while I think there are problems with Day, it did not preordain this extreme result.
Tuesday, August 27, 2013
Today in my international environmental law class I showed the below clip from the Daily Show to add some levity to the classroom. We were discussing scientific uncertainty, the precautionary principle, scientific consensus and a variety of other issues related to climate change and other global problems. Scientific data rarely, if ever, meets the 100% certainty mark, and the 95% certainty (now higher than that according to the recently leaked IPCC report) that scientists maintain about human contribution to climate change may be as close as we can get to absolute certainty.
We discussed "50-50" journalism, which is the concept that news media - in an effort to be "balanced" - often portray to the public one party agreeing with a majority of climate scientists and one party in opposition. The public, therefore, believes that the issue is a close call, or that the race for the truth is "spandex tight," as Dan Rather would say. Never mind the fact that if I offered climate skeptics a drink that was tasty, gave a boost of energy, and came in a cool can, but which also had a 50% chance of giving them cancer, they would surely turn it down.
At any rate, this video gets at the heart of the contention that climate change is a conspiracy to line the pockets of academics. I first note for the class that, of course, there are extreme groups on both sides of the issue. But assuming for a moment that certain groups had more of a vested interest in skewing public perception on climate, would it be scientists in an effort to get "rich" on grant money (does this actually happen?) or entities within the economic sector most reliant on the burning of fossil fuels? To choose the former just indicates a serious deficit of common sense.
At any rate, this is a fairly hilarious clip - and does get a few chuckles from the class, which is nice from time to time.
- Blake Hudson
Monday, August 19, 2013
In April, EPA’s Office of Solid Waste and Emergency Response issued an external review draft of its Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air. Vapor intrusion, as the title of the document suggests, is the migration of volatile chemicals from subsurface sources into overlying buildings. It occurs as a result of environmental contamination, when chemicals volatilize from contaminated soil and groundwater beneath buildings and other structures.
In a 2011 article in the Virginia Environmental Law Journal, I examined the jurisdictional quandary that vapor intrusion presents for EPA and OSHA. As a form of environmental contamination, vapor intrusion triggers EPA’s cleanup authority under RCRA and CERCLA. But some buildings in which vapor intrusion is a problem are workplaces, potentially implicating OSHA’s regulatory authority as well. Whether vapor intrusion in workplaces should be the province of OSHA, EPA, or both agencies has been a matter of considerable disagreement.
EPA’s previous draft guidance document regarding vapor intrusion, issued in November 2002, conveyed mixed signals about EPA’s jurisdiction over vapor intrusion in occupational settings. The document stated that “OSHA and EPA have agreed that OSHA generally will take the lead role in addressing occupational exposures” and that “EPA does not expect this guidance be used for settings that are primarily occupational,” but also noted that vapor intrusion is not a typical occupational exposure and that OSHA exposure limits may therefore not be adequate.
EPA’s new draft final guidance seems to assert EPA authority to address vapor intrusion in occupational settings. The draft states, “EPA’s statutory authorities to protect human health . . . include mandates to protect the public and workers’ health in nonresidential settings where hazardous vapors may be intruding into occupied buildings from vapor intrusion.” The draft does not specifically address the question of how EPA’s authority interacts with OSHA’s authority, but its language is consistent with the position EPA seemed to settle on after its 2002 draft guidance, which is that EPA can appropriately regulate occupational exposures at least as to chemicals not in use at the worksite, because OSHA has concluded that it lacks authority over contamination that does not originate from the workplace.
The comments EPA received on the draft final guidance are available on regulations.gov. Some commenters—mainly state environmental regulators, from what I saw—would like EPA to go further in its guidance and explicitly assert authority over vapor intrusion in all occupational settings. The regulated industry—potentially responsible parties and property owners—would prefer for EPA to simply apply OSHA’s apparently more lenient standards.
In defense of their assertion that EPA should apply OSHA’s standards, regulated industry’s comments cite a need for “consistency” and “uniformity.” But even if consistency and uniformity are desirable in this context—there are policy considerations here that mirror the policy debates over federalism—this would not necessarily support the conclusion that OSHA’s more lenient standards are superior to EPA’s more stringent ones. Indeed, a disparity between OSHA’s standards and EPA’s standards could indicate the inadequacy of OSHA’s standards, rather than excessive conservatism in EPA’s standards. In sum, it is not at all clear that the industry commenters’ calls for uniformity and consistency get them to their goal of EPA adopting OSHA’s standards.
My article argued that overlapping regulatory jurisdictions can be an opportunity for agencies to address in constructive ways the discontinuities that exist between statutory schemes, such as differences between RCRA and CERCLA and the OSH Act. EPA, in its guidance, seems to be making a concerted effort to engage thoughtfully with the issue of its regulatory overlap with OSHA. Let’s hope the agency continues to move in that direction, rather than the more knee-jerk direction advocated in the regulated industry’s comments.