Tuesday, May 31, 2016

The Clean Water Act in the Crosshairs

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

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

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

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

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

-Dave Owen 

May 31, 2016 | Permalink | Comments (1)

Monday, May 2, 2016

Local Fracturing Bans Preempted in Colorado

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

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

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

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

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

-Hannah Wiseman

May 2, 2016 in Energy, Land Use | Permalink

The Surprising Evolution of Federal Stream Protections

Right now, the United States’ second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act.  According to its many opponents, the rule is one big power grab.  EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.

Epa stream imageIn a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story.  The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams.  But the Clean Water Rule is just a small part of that transformation.  Some of the most important events occurred earlier, in places and under presidential administrations that are not typically seen as founts of environmental progress.  A simple story of regulatory overreach (or, conversely, regulatory capture) also explains very little of what has happened.  Streams have more protection now than they did as recently as the late 1990s.  But even as regulatory agencies have extended protections, they also have found ways to accommodate regulated industries in the application of environmental law.

And why might you care?  One reason is that this story of regulatory transformation might help us see the Clean Water Rule in a different, and more positive, light.  A second reason is that small streams are very important, though many people don’t realize that fact.  There are thousands of them across the American landscape, and their contributions to water quality—and their potential to complicate plans for construction and development—are enormous. 

Finally, and most importantly, this story of small streams offers a parable for the hidden history of environmental law.  Many people, including law professors, offer dark takes on the current state of environmental policymaking.  Complaints of Congressional gridlock are constant.  Courts, with some exceptions, generally seem like poor forums for advancing new theories of environmental protection.  And administrative reforms may not sound particularly enticing if one thinks, as many people do, that agencies are either myopic, empire-building over-regulators or, alternatively, industry’s captives.  But the evolving history of stream regulation suggests that environmental protection is not so gridlocked; that agencies can be, and are, engines of positive reform; and that those changes can occur in ways industries can live with.  The full story, as anyone who reads the article will quickly note, is more complicated than that simple summary; this is not just a happy tale.  But at its core, the recent history of stream regulation provides some basis for optimism.

Of course, that optimism comes with a big caveat: the litigation isn’t over yet.  In the months to come, advocates will continue trying to persuade judges that EPA and the Army Corps are out of control, and that basic principles of federalism require those agencies’ jurisdiction to be severely limited.  They may yet succeed, for the fact that a narrative is largely false does not necessarily make it unpersuasive or inconsequential.  And that would be a shame.  The real story of stream protection—if judges allow it to continue unfolding—is one of environmental law continuing, in its messy, sometimes frustrating way, the process of growing up.  And growing up, here as elsewhere, is something to celebrate, not enjoin.

- Dave Owen

image from epa.gov.


May 2, 2016 | Permalink | Comments (0)

Wednesday, March 30, 2016

A Few Reactions to the Hawkes Oral Argument

The United States Supreme Court heard oral argument this morning in U.S. Army Corps of Engineers v. Hawkes, a case considering whether "jurisdictional determinations" under the Clean Water Act are subject to judicial review.  Below are a few reactions to the questions and answers at oral argument (all based on reading the transcript; I was not there).

  • This shouldn't be as ideologically fraught as some of the Court's other recent environmental cases.  The basic dilemma raised by this case is that informal government communications can be really helpful to regulated entities, but it can also seem frustrating and unfair when a regulated entity finds itself bound, as a practical if not legal matter, by those informal communications and can't challenge them in court.  Ruling against the government could chill a form of communication that most regulated entities find helpful; ruling against for the government could delay the ability of non-governmental entities of all types--liberal advocacy groups as well as conservative groups and businesses--to challenge legal positions they find objectionable.  That does not, on its face, sound like an overtly ideological dilemma, and, perhaps not surprisingly, some of the justices were clearly troubled by both sides' arguments.  But the more conservative justices appear, from their questions, to be skeptical of the notion that informal communication might be a valuable service offered by agencies, and to have adopted the more cynical view that it's really just about extending the agency's power and reach.  Once they've made that move, the case does start to look a whole lot more ideologically charged. 
  • So is the Clean Water Act "unconstitutionally vague" but not at all ambiguous?  At one point, Justice Kennedy suggested that the Clean Water Act's jurisdictional provisions might be unconstitutionally vague.  Yet fifteen years ago, in SWANCC v. United States, Justice Kennedy signed on to an opinion that expressly declined to accord Chevron deference to the Army Corps's and EPA's interepretation of that same jurisdictional provision.  The Court normally gives Chevron deference to reasonable agency interpretations of ambiguous statutory provisions, but the SWANCC majority instead concluded that the statute's meaning was sufficiently clear that no such deference was required.  Five years later, in Rapanos v. United States, Justice Kennedy authored a concurring opinion interpreting those same provisions; his concurrence again declined to accord Chevron deference.  Perhaps this is just a reminder that no one should make too much of stray asides at oral argument, but the suggestion that the statutory language--which hasn't changed--is now unconstitutionally vague seems drastically at odds with Justice Kennedy's prior positions.
  • The 404 permitting process is faster, usually, than the justices realize.  In one question, Justice Ginsburg described the dilemma of a landowner who receives an unfavorable (from the landowner's perspective) jurisdictional determination: "now they have to go through this whole process, and it's going to take years and cost me a lot of money."  But it probably won't take years.  Below, I've pasted a chart from a recent Army Corps/EPA report on 404 permitting.  As you can see, typical permitting times are much shorter than Justice Ginsburg suggested.  And while the data don't answer this question, I suspect permitting times are likely to be particularly short for the kinds of borderline situations in which landowners request jurisdictional determinations.  Generally speaking, bigger impacts to aquatic resources require longer permitting times, and landowners whose impacts will be big usually have no need of jurisdictional determinations.

Army corps chart

This may not matter for the legal issue in the case.  An obligation to go through a six-month permitting process, or even a two-month process, is still an obligation.  But I'm concerned to see more of the justices implicitly buying into elements of a false narrative about the oppressiveness of the 404 program.  

And that mythmaking was in further evidence later in the argument.  At one point, Justice Alito made the following assertion about the consequences of a jurisdictional determination: "And if they issue a negative,­­ I'm sorry,­­ an affirmative jurisdictional determination, as a practical matter, that's going to mean in most instances that the project is shut down."  That statement is inaccurate.  In reality, an affirmative jurisdictional determination means the landowner may have to adjust the project design and may need to compensate for the resulting impacts to aquatic resources.  But it does not mean the project will be shut down.

  • As an administrative law professor, I love this question from Justice Kagan.  She gets it. 

I mean, one of the reasons I find this case very difficult is because all over the Federal government there are compliance offices of various kinds whose function is to give advice to people. And often that advice comes with very specific recommendations. It says we will not take enforcement action if, or, we do not consider it a violation of law  on the following facts. And I guess what I want to know is your view of how this program compares to various other kinds of programs like this, whether it's the ­­ whether it's tax opinion letters, or SEC opinion letters, or FCC or whatever, how this program compares to those and where you could draw sensible lines, because mostly we want  government agencies to do these things. We think that this helps people, to actually know what the government thinks about particular factual situations. So how do we draw lines in this area, in your view?

Dave Owen


March 30, 2016 | Permalink | Comments (0)

Wednesday, March 9, 2016

The Devil Is in the Design: Forming California's New Groundwater Sustainability Agencies

Not that long ago, the opening words of one of Joe Sax’s articles described California pretty well. “We Don’t Do Groundwater,” the title began, and until recently, that was true—in spite of the immense importance of the resource.  Outside of a few urban areas in coastal southern California, California groundwater use regulation was largely an oxymoron.  

In 2014, that changed. The California Legislature passed the Sustainable Groundwater Management Act, a statute designed to create comprehensive and, as its name suggests, sustainable management of groundwater.  The statute also is designed to promote local discretion and control.  While the legislature defined broad goals and conferred oversight authority on the California Department of Water Resources and State Water Resources Control Board—both of which are statewide agencies—primary implementing authority will rest with local groundwater sustainability agencies, or GSAs.  Those GSAs are now just beginning their work, and many challenges lie ahead.

This week, UC Berkeley Law School’s Center for Law, Energy, and the Environment (working in partnership with UC Water and researchers from UC Hastings, UC Santa Cruz, the University of Idaho, the University of Massachusetts, and the Union of Concerned Scientists) released a report designed to help these GSAs succeed. 

The report begins with the premise that GSA governance systems will help determine the success of SGMA implementation – even the best plan has limited value without an agency that can implement it.  To facilitate effective implementation, the report offers a framework for institutional design. More specifically, it identifies a series of criteria for evaluating whether GSAs are likely to be able to govern both fairly and effectively.  The criteria – scale, human capacity, funding, authority, independence, representation, participation, accountability, and transparency – should help stakeholders and agencies evaluate whether a GSA will be able to manage groundwater sustainably. The report also draws upon examples from the management of other natural resources to illustrate some of the challenges GSAs are likely to face, and some of the ways other resource management agencies have worked through similar challenges.

Some key recommendations include:

  • GSAs should minimize the fragmentation that is so common among California water management. Those GSAs should focus, to the extent possible, on aligning their scale to groundwater basin boundaries, rather than existing jurisdictions.
  • GSAs will need to develop a range of expertise, including technical, legal, financial, and management, in order to understand and effectively manage a complex and hidden resource. Funding the development of this human capacity will require giving careful thought to a variety of sources of revenue. State agencies will also need to consider how they can best lend their expertise to local regulatory efforts.
  • To avoid the potential for domination by a narrow range of interests, GSAs will need to develop mechanisms for participation and representation of a broad range of stakeholders.
  • To ensure accountability, the state needs to be prepared to actively exercise its oversight responsibilities, and to clearly signal now how and under what conditions it will do so.

The report provides more detail on these and other recommendations, and can also serve as a reference to the tools and options available to GSAs. We intend for the report to help the people who staff and manage GSAs as they attempt to meet the challenges of groundwater management, the state agencies who act as the crucial backstop for the act’s implementation, and the many stakeholders who will ultimately benefit from achieving groundwater sustainability in their local basins.  California now does groundwater, and we hope this report will help us do it well.

- Dave Owen and Michael Kiparsky

Michael Kiparsky is Associate Director of the Wheeler Institute for Water Law and Policy at Berkeley Law.  The report's other authors were Nell Green Nylen, Juliet Christian-Smith, Barbara Cosens, Holly Doremus, Andrew Fisher, and Anita Milman.

March 9, 2016 | Permalink | Comments (0)

Sunday, March 6, 2016

Clean Water Act Jurisdiction and the Changing Supreme Court

Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law.  This post adds a little more to that speculation.  My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule.  And my prediction is a bit different from most predictions about the Clean Power Plan.  Here, I predict, that changes in court composition probably won’t matter much.

Before I explain the reasons for that prediction, a little context may be helpful.  The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act.  The Army Corps and EPA jointly released the rule last summer.  Its most controversial provisions retain, with minor adjustments, existing jurisdictional practices for small-ish wetlands and streams.  Most of the rule’s opponents (a combination of states and regulated industries) were hoping for narrower jurisdiction, and they filed many lawsuits challenging the rule.  Some environmental groups, while generally supportive of the rule, objected to a few provisions they thought narrowed jurisdiction too much, and they, too, have sued. 

The challenges will be decided by the Sixth Circuit Court of Appeals, which recently and somewhat grudgingly ruled that it did have jurisdiction over the cases.  I think the outcome before the Sixth Circuit will likely turn on one of two questions: first, was the final rule a logical outgrowth of the proposed rule, or were changes in the final rule sufficiently unexpected that they deprived interested parties of their opportunity to comment?  And, second, is the rule consistent with the text of the Clean Water Act, as interpreted by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States?  After the Sixth Circuit decides on those issues, cert petitions seem likely.  And a grant of cert would surprise no one (particularly if the Sixth Circuit decision turns on the second question above; the first might seem more fact-bound and less cert-worthy).

If a case is likely to wind up at the Supreme Court, and if the underlying issues have closely divided the Court in the past, a change in the composition of the Court would seem to be very important.  So why not here?  It helps to consider a few different scenarios through which the case could reach the Court.

Scenario 1: The Sixth Circuit upholds the Clean Water Rule, and cert petitions are decided by an eight-member Court.  This scenario could occur if the Sixth Circuit decides the case exceedingly quickly, or if the appointment stalemate drags on well into the next administration.  If that happens, then a denial of cert seems likely—there would probably be a minimum of four strong votes to affirm the Sixth Circuit, and therefore little appetite for further review—and the Sixth Circuit decision would stand.  And the change in Court composition would turn out to matter. 

But this scenario isn’t likely.  Many months will likely pass before the Sixth Circuit issues an opinion, and a petition for cert will probably be reviewed by a nine-member Court.  I’m also mildly pessimistic about the rule’s chances before the Sixth Circuit.  The current panel has two Republican appointees--an imperfect indicator of inclinations, but not a meaningless one--and that panel already has stayed the rule and sent some signals of concern about its legality.  I do not think those signals are justified, but it’s the judges, not me, who will decide the case.

Scenario 2: The Sixth Circuit sets aside the Clean Water Rule, and cert petitions are decided by an eight-member Court.  In this circumstance, I think Supreme Court review is more likely.  The four liberal justices would likely want to reverse the Sixth Circuit and uphold the rule, and they might reasonably hope that Justice Kennedy would eventually join them.  Consequently, the outcome of the case would likely come down to Justice Kennedy’s vote—just as it would have if Justice Scalia still were a member of the Court. 

And (here comes the bolder part of the prediction) I think Justice Kennedy will vote to uphold the rule.  His Rapanos opinion seems to me to reflect three basic concerns: he wouldn't mind some boundaries on federal authority; he wants a science-based rule; and he wants a rule consistent with the basic goals of the Clean Water Act.  This rule may do less than Justice Kennedy might like to limit federal authority.  But, as mountains of record evidence make pretty clear, EPA couldn’t limit federal authority very much while also writing a strongly science-based rule and respecting the goals of the Clean Water Act.  In past cases, Justice Kennedy has acknowledged that his commitments to state empowerment sometimes need to give way to other values, and I think—and hope—he’d say the same thing here.

(I’ve also argued elsewhere that states actually have a lot of influence over what EPA and the Army Corps do within the boundaries of their jurisdiction, which suggests that a proponent of a strong state role could be comfortable with broad federal jurisdiction.  But that’s a little tangential here.)

Scenario 3: A nine-member Court, with five Republican appointees and four Democratic appointees, hears the petition for cert and decides the case.  This circumstance is likely to produce a similar outcome to scenario 2.  There still would be four votes to grant cert; the liberals still would have a reasonable hope of bringing Justice Kennedy to their side, and Justice Kennedy still would be the deciding vote.  He’d have one more colleague asking him to join the conservative bloc, but he seems to make up his own mind.

Scenario 4: A nine-member Court, with five Democratic appointees and four Republican appointees, hears the petition for cert and decides the case.  This might seem to be a very different scenario, for Justice Kennedy now would no longer be the tiebreaking vote, and the rule would probably be upheld.  Indeed, one might think, at first, that the rule would be upheld under a rationale that gives EPA and the Army Corps more latitude to regulate broadly

But EPA and the Army Corps themselves have largely foreclosed that possibility.  In crafting the rule, EPA and the Army Corps adopted Justice Kennedy’s “significant nexus” standard as governing law.  They clearly put a high priority on writing a rule that Justice Kennedy would vote to uphold, and building a record that would convince him to uphold it.  With a reconstituted and more liberal Court, EPA and the Army Corps probably could assert jurisdiction more broadly.  But they had no way of knowing that Court might be coming—and it still might not come—so they decided, quite reasonably, to make Justice Kennedy the deciding vote before the rulemaking even began.

Other scenarios are possible, of course; we live in an unpredictable world.  But if the scenarios above exhaust the most likely possibilities, I think the bottom line is that for Clean Water Act jurisdiction, at least, Justice Kennedy is still the deciding vote.

- Dave Owen

March 6, 2016 | Permalink | Comments (0)

Thursday, February 25, 2016

Daniels and Grow Sun on Externality Entrepreneurism

Professors Lisa Grow Sun and Brigham Daniels recently posted the latest draft of their recent article, Externality Entrepreneurism, on SSRN. This article builds on an earlier article, Mirrored Externalities, that they published in the Notre Dame Law Review in 2014. In Mirrored Externalities, Grow Sun and Daniels highlighted the fact that “negative externalities are the inverse—the mirror image—of the positive externalities.” For example, preserving a wetland can be described as creating positive externalities, such as water filtration and flood control; conversely, destroying the wetland can be characterized as creating inverse negative externalities: poorer water quality and increased flooding. The reason that mirrored externalities matter is “the framing of externalities has profound effects on both the way we think about and process externalities and on our politics and policy development.” Emphasizing negative externalities, for example, may suggest the appropriateness of particular types of policy solutions (like fines and regulation) and may trigger loss aversion in a way that positive externalities do not.

In Externality Entrepreneurism, they expand their consideration of the framing of externalities, examining a variety of ways that externality arguments can be employed to drive legal and social change. The abstract of their paper is as follows:

The way that economists have taught us to think about externalities—asking us to identify, measure, and internalize them—while useful, has created a substantial blind spot. According to economic thinking, the law ought to incentivize or force those who create externalities to internalize them. Yet, internalizing externalities is just one way of many that externalities shape law and politics: legal and political actors frequently employ externalities to galvanize or oppose change by strategically identifying, selecting, framing, and promoting externalities. These actors exaggerate and highlight different externalities with the aim of capturing the attention of individuals, the media, networks of interest groups, and ultimately legal and political decisionmakers. We call those who use externalities this way “externality entrepreneurs.” Externality entrepreneurism is prevalent in all levels and branches of government and in almost every area of law and policy, yet it is completely unexplored in existing scholarship. This Article seeks to remedy that neglect and begin the broader conversation about this vitally important lens. Because externality entrepreneurism is so ubiquitous and universal, understanding it is critical not only for those who wish to create change in our political and legal institutions but also for those who wish to more fully understand and evaluate the mechanisms by which such change occurs.

I highly recommend both of these thoughtful and insightful pieces on how important the framing of externalities/internalizing environmental costs and benefits is to modern policy development.

- Blake Hudson

February 25, 2016 | Permalink | Comments (0)

Wednesday, February 24, 2016

The Latest on Koontz v. St. Johns: State Supreme Court Declines to Review Appellate Decision on Remand in Key Takings Case

This past week, the Florida Supreme Court denied a petition for certiorari in the long-running takings case of Koontz v. St. John’s River Water Management District. The denial lets stand an appellate decision on remand from the U.S. Supreme Court that presents significant obstacles for state efforts to protect the environment and regulate land uses. 

To re-cap, in 1972 Koontz bought a 15-acre lot consistently predominantly of wetlands.  Two decades later, the state proposed conditions allegedly aimed at mitigating the wetland impacts of a shopping mall that Koontz sought permission to build on the property.  Koontz scoffed at the proposed conditions.  In a rather confusing back-and-forth, the state withdrew those conditions and denied the requested permit, before reconsidering and unconditionally granting that permit.  Despite having the permit in hand, Koontz continued to press his claim that the originally proposed conditions amounted to an unconstitutional taking for which he was due compensation.

In 2009, a state appellate panel determined that Koontz was entitled to $477,000 in takings compensation for the property’s lost rental value over the period of time between the denial of his development application and the issuance of the permit in light of the fact that the initially proposed conditions did not comport with the heightened scrutiny discussed in the Supreme Court’s conveniently-rhyming Nollan and Dolan decisions. (Together, these cases require the state—as the defendant—to prove that some unspecified class of permit conditions bear an “essential nexus” to and are in “rough proportionality” with the proposed development’s impacts to avoid having to pay takings compensation.)

In 2013, the U.S. Supreme Court confirmed that, where a governmental entity (i) proposes certain permit conditions but (ii) later withdraws those proposed conditions and (iii) makes a decision to approve or deny the requested permit, those temporarily proposed conditions are subject to the heightened scrutiny of Nollan and Dolan.

The Supreme Court’s decision describes Koontz as presenting a dispute that fits within Nollan and Dolan’s “special application” of the Court’s unconstitutional conditions jurisprudence. This description is peculiar for, among other reasons, the Court stated that “nothing has been taken” from Koontz because he never had to comply with any untoward permit conditions. Further complicating matters, the Court did not discuss what remedy, if any, might be available to a claimant who successfully argues that a proposed condition does not pass Nollan and Dolan muster, stating that “[b]ecause [Koontz] brought his claim pursuant to a state law cause of action, the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases.”

Yet on remand in June of 2014, the state appellate court summarily concluded by a 2-1 vote that its earlier decision awarding “just compensation” for a “taking” was “entirely consistent” with the Supreme Court’s decision.  It, therefore, “reaffirm[ed]” its compensation award for lost rents over the period of time between the denial of Koontz’s original development application and the issuance of the permit.

The dissenting judge saw the remand as presenting the question of whether a damage award was appropriate under a state statute for action that represents an “unreasonable exercise of the state’s police power constituting a taking without just compensation.” With the Supreme Court having confirmed that no taking occurred, she contended that the case could only be decided summarily in favor of the state. At minimum, though, she would have requested additional briefing.

Last week, nearly two years after the appellate court’s decision on remand, the Florida Supreme Court denied the state’s petition for certiorari. The state has not yet announced whether it will ask the U.S. Supreme Court to take up the case a second time. 

The implications for environmental protection and land use controls are potentially significant should the Florida appellate court decision stand, especially if that decision proves influential as other states’ courts begin to wrestle with the vagaries of the U.S. Supreme Court’s decision in Koontz.

Until the 1980s, it was largely understood that the state need not pay compensation for property later found to be taken by a regulatory action if the state repealed that regulatory action immediately upon the takings finding. Yet in its 1987 decision in First English, the Supreme Court concluded that “where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.”

There is broad agreement that First English’s holding requiring compensation in these instances has a chilling effect on government regulation.  The appellate decision on remand in Koontz seemingly works to expand First English’s retroactive takings compensation principle to at least some government communications made during pre-decisional negotiation sessions and subjects such communications to the heightened scrutiny of Nollan and Dolan.

There are a number of courses that government entities could take in this confusing and chilling post-Koontz world, all of which admittedly come with their own shortcomings and risks.  Sean Nolon posed several here, and I added to Sean’s list here. It may be fodder for future empirical work to determine which of these approaches—and the assuredly many other approaches that are not discussed in these essays—the myriad state and municipal entities adopt moving forward. 

Tim Mulvaney

Guest blogger Tim Mulvaney is a Professor of Law at Texas A&M University School of Law.  He can be reached at  tmulvaney@law.tamu.edu.

February 24, 2016 | Permalink | Comments (0)

Monday, February 22, 2016

Reverse Us, Please: The Sixth Circuit and WOTUS Jurisdiction

The United States Court of Appeals for the Sixth Circuit just released on opinion retaining jurisdiction in the litigation challenging the joint EPA/Army Corps Clean Water Rule, also often known as the Waters-of-the-United States (or WOTUS) rule.  The question before the court was whether the Clean Water Act assigned jurisdiction over challenges to the rule to the courts of appeals or to federal district courts.  Many of the rule's challengers wanted their claims in district court, or so they argued; the federal government sought to keep the case in the Sixth Circuit.  Today, the feds prevailed; the Sixth Circuit held that jurisdiction should remain at the appellate level.

It reached that conclusion with very little agreement or enthusiasm.  The case produced three opinions, with two concurring in the retention of jurisdiction, but not on the rationale, and one dissenting.  All three judges agreed that the best reading of the statute would have assigned jurisdiction to the federal district courts.  But two of the three judges believed that binding judicial precedent foreclosed that reading of the statute.  That resulted in statements like this, all from the judges who ruled in favor of appellate jurisdiction, and thus for the federal agency defendants.

Judge McKeague:

-"On its face, the Agencies' argument is not compelling."

-"While [the challengers'] plain arguments are not without facial appeal, we are hardly at liberty to ignore the consistent body of case law that has sprung from that language in encounters with the real world...  Were we arguing on a blank slate, the argument would be more persuasive, but we're not."

Judge Griffin:

- "I concur in the judgment... only because I am required to follow our precedentially-binding decision...

- "In my view, it is illogical and unreasonable to read the text of either [of the Clean Water Act jurisidictional provisions at issue] as creating jurisdiction in the courts of appeals for these issues."

That kind of language seems an awful lot like an invitation for Supreme Court (or en banc) review.  But will that invitation to the Court be granted?  For two reasons, I suspect it might not.  

The first is that there might not be a cert petition.  The petitioners who "lost" on this motion might have decided that they're actually quite happy to stick with the Sixth Circuit, where they've drawn a conservative panel--a panel, in fact, that already has stayed the rule.  Their only advantage to a cert petition might be to draw out the litigation a little longer, and thus to potentially lengthen the stay.  And the Department of Justice isn't exactly likely to appeal when it just won.

The second reason is that the Supreme Court might not have any interest in granting cert.  The issue here is specific to one statute.  There isn't a circuit split.  And the issue probably wouldn't strike the justices as very interesting or important.  Indeed, the one Justice whose interest a cert petition might have piqued would have been Justice Scalia, who I think would have been rather offended at the non-literal readings prior courts had given to the statutory text in question.  And Justice Scalia, of course, has passed away.

So the case may very well continue forward in the Sixth Circuit, heard by a panel of judges that would have unanimously dismissed the challenges, and would have let those challenges proceed instead in federal district court, had they believed governing judicial precedent allowed that option.

- Dave Owen


February 22, 2016 | Permalink | Comments (2)

Wednesday, February 17, 2016

The Clean Power Plan, the Supreme Court's Stay, and Irreparable Harm

Last week, the Supreme Court controversially stayed implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while twenty-nine states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. The rule is designed to reduce emissions from coal-fired plants, the dirtiest form of energy production, through a mix of stricter limits on existing plants, measures to increase energy efficiency, and other mechanisms that encourage producers to shift from coal to cleaner renewables and natural gas.

The CPP provides for substantial flexibility in how reduction targets may be attained within states, allowing states to choose among various options proposed in the rule, to come up with their own proposals, or to opt for federal regulation in lieu of state oversight. Nevertheless, generators heavily invested in coal argue that implementation will require expensive changes.

It therefore surprised no one that states with the most coal-dependent economies, and with political leadership most sympathetic to the coal industry, are challenging the CPP in court. They argue, among other things, that EPA is unauthorized to regulate power plants this way, that the standards imposed by the rule did not take fair account of the costs of implementation, and that the final rule was insufficiently related to the proposed rule on which the public provided comment. Eighteen other states are supporting the rule, together with environmental groups and some power companies (including utilities in some states that are challenging the rule). Proponents contend that federal environmental laws have always targeted energy production, a primary source of regulated pollutants, and that the CPP legitimately follows from established legal authority, the regulatory record, and the proposed rule.

EPA always knew the CPP would be litigated, and so the lawsuits came as no surprise. But the Court’s move to stay the rule—before the issues had even been aired in open court—has apparently surprised everyone. The one-page order made no judgment on the merits of the case, but it suspends implementation of the rule while the litigation runs its full course, a process expected to take at least eighteen months. The Court split along ideological lines in issuing the stay, with the five more conservative justices voting for the stay over opposition by the four more liberal justices. Just weeks earlier, the D.C. Circuit declined to issue the plaintiffs’ requested stay, following uniformly applied federal judicial norms—until now.

The Supreme Court has never before blocked implementation of a generally applicable regulation before its merits have been considered by a federal appeals court, so the stay has provoked a vociferous response. Supporters of the CPP excoriate the move as “unprecedented” while opponents hail it as “historic.” Undue judicial activism may be in the eye of the beholder, but most agree that the stay does not bode well for the future treatment of the CPP before the Court. Such an unusual move cannot help but send signals that at least five of the justices are skeptical of at least parts of the rule.

The CPP is the Obama Administration’s last and best effort to take on the super-wicked problem of climate change, and its ambition responds appropriately to the magnitude of the challenge. All of us will benefit from sensible climate policy in the long run, but as with all regulatory changes, there will be winners and losers in the short run—and the losers are passionately defending their interests in the litigation at hand. They are entitled to do so, and the courts must give their arguments the most serious consideration.

Nevertheless, the Court’s novel stay raises concerns of a different order. It represents another move by the Roberts Court to shift power toward the judiciary on matters that relate not to individual constitutional rights—where judicial prowess necessarily overtakes the majoritarian tendencies of the political branches—but to the complex allocation of costs and benefits within a comprehensive regulatory program, where judicial capacity is easily eclipsed by legislative and executive competence. The three branches of government specialize in answering very different legal questions, and conservative-leaning courts like the Roberts Court are usually quick to remind us that broad-brush public policymaking is not a judicial task.

The CPP, for example, makes sophisticated choices about responsibly balancing the potential harms of regulating and not regulating harmful pollutants, and how to structure regulatory obligations to maximize health benefits while minimizing economic harms—all after exhaustively accounting for public input on the proposed rule. If the justices nevertheless find legal infirmity after carefully engaging all evidence and arguments, it is their duty to reject it. But when the Court breaks with its own norms to block the President’s capstone climate initiative for the remainder of his final term—before meaningful judicial review of the merits—perhaps that approaches the boundaries of appropriate use of its own authority. If it does not invite pause about the constitutional separation of powers, it at least gives cause to reflect on the lessons of the Lochner era (in which the Court struck down state economic regulations of which the majority disapproved).

Opponents of the CPP argue that the stay is legitimately unprecedented because the CPP is itself unprecedented—asserting a wide range of authority that is both proven and untested, prompting deliberation of legal questions with which the Court has not previously engaged. Yet most litigation reaching the Supreme Court raises novel questions of law; if not, they would be easily resolved in the lower courts. Claims that a pre-litigation stay was required to prevent irreparable harm are also overblown, because the CPP was designed to phase changes in gradually, giving states producers and ample time to move forward and adjust at a measured pace. States had until 2018 to submit plans for compliance—well after this litigation is expected to conclude—and until 2025 to begin showing actual progress.

The irreparable harm with which we must now contend is to the fragile international consensus on sustainable climate governance. In signaling such strong skepticism toward the CPP, the stay could irreparably damage the global community’s efforts by weakening the very U.S. leadership that led to the historic climate accord reached in Paris just two months earlier. On December 12, 2015, breaking through decades of stalled progress, 195 nations pledged to work together on forestalling the catastrophic effects of a warming climate. While the agreement itself did not guarantee the needed results, it established a critical framework for global collaboration that, many hoped, would further spur world financial and energy markets toward investment in carbon-neutral renewables and away from fossil fuels.

President Obama helped inspire the participation of other nations by assuring them that the U.S. would honor its own commitments under the agreement, and the CPP was the centerpiece of this effort. Now, all who relied on U.S. assurances before making their own commitments must be deeply unsettled. Even though the CPP may yet emerge wholly or mostly unscathed in litigation, as many experts predict it should, the damage to post-Paris momentum could already have been done. Without even reaching the merits of the case, the Supreme Court has thus cast doubt on the entire prospect of U.S. compliance with the Paris accord—and with it, doubt on compliance by other nations as well.

In this way, the stay could cause irreparable harm not only to countless U.S. citizens affected by domestic climate policy, but to the hundreds of millions of the world’s most vulnerable people—none of whom are represented in these proceedings—who are at risk from sea-level rise, hurricanes, drought, and fires associated with climate change.

(Pause here for somber reflection… for an appropriately long and somber time.)

Okay: that’s the depressing, glass-half-empty view of what has happened this week. Resisting the urge to just hide under the covers, let me now suggest a more hopeful alternative. The Court has undeniably, inexplicably dealt a blow to the CPP in the short term. But in the long term, perhaps it is not the death knell for the underlying elements of the plan, for U.S. compliance with the Paris accord, and for continued momentum for a global response to the climate crisis.

The CPP was designed to nudge U.S. energy markets away from its path-dependence on fossil fuels and toward sources that impose fewer harmful externalities on human health and the environment. But that path is changing anyway, as both market and environmental forces operate to shift energy production toward renewables. In some parts of the country, wind energy is now cost competitive with natural gas. In places like West Texas, solar photovoltaic is now cost competitive with gas. Extending beneficial tax treatment to renewables that oil and gas have long enjoyed would move them toward economies of scale more quickly, but the trends suggest that low-carbon energy sources will make economic sense even without regulatory incentives.

As low-carbon sources become increasingly economically competitive, many states will continue to follow important elements of the CPP even if the Supreme Court ultimately rejects it. More than half the states have already established well-developed renewable portfolio standards—requirements that a certain percentage of their electricity must come from renewable energy sources—and they will likely continue to implement them regardless of the Court’s conclusion. Most states in the Northeast are already on track to comply with the CPP. Ongoing progress in energy efficiency will further cut carbon emissions, even without changes in production.

Moreover, even if the CPP struggles in court, carbon emissions from power plants will still be regulated under the Clean Air Act. Why? None other than the Supreme Court required it in Massachusetts v. EPA, which famously held that the Clean Air Act requires EPA to regulate greenhouse gases. Other air pollution rules, such as the Mercury and Air Toxics Standards that limit the emission of hazardous pollutants, will likely prevent new coal plants from coming online. Indeed, few, if any, new plants have been built in recent years.

Finally, it’s important to remember that while half the states have lined up against the CPP, most of the remaining half stand with it. Even some of the states opposing the rule are politically split—such as Colorado, where the attorney general opposes the plan, but the governor endorses it. There remains substantial support for the CPP, and a growing list of experts have publicly argued that it should survive judicial review on the merits, notwithstanding the Court’s apparent skepticism. So while the future of the CPP is uncertain, it is certainly not over. Only time will tell, and although time is not on our side, we can make the most of it by keeping on the path to cleaner energy as best we can while the litigation plays out.

--Erin Ryan

--Erin Ryan is Professor of Law at the Florida State University School of Law.  A version of this essay first appeared on Feb. 17, 2016, on the American Constitution Society Blog. Hannah Wiseman contributed invaluable sources and inspiration to this essay.

February 17, 2016 | Permalink | Comments (0)

Tuesday, February 16, 2016

The Des Moines Tile Line Discharge Case

A lawsuit recently filed in federal district court in the Northern District of Iowa aims to bring more agricultural pollution under Clean Water Act control. Board of Water Works Trustees of the City of Des Moines, Iowa v. Sac County Board of Supervisors, No. 5:15-CV-04020 (N.D. Ia., filed March 16, 2015). The suit claims that discharges from subsurface “tile” drainage lines are “point sources” of pollution, which require CWA permits.

No one denies that Iowa, like most agricultural states, faces significant water quality issues.  The state’s 2014 impaired waters list contains 574 waterbodies not meeting water quality standards, a 260% increase from the 159 waters on the 1998 list.  In addition, phosphorus and nitrogren from upper Mississippi river states like Iowa contribute significantly to the hypoxia problem in the Gulf of Mexico. 

Much of this water quality problem can be traced to agriculture, the 90,000 farms that comprise over 86% of Iowa’s land base.  Iowa regularly ranks first or second in the nation in the production of hogs, corn, and eggs.  Hogs produce nutrient-rich manure, which is then used to fertilize nitrogen-hungry corn, which in turn is used to feed the pigs. 

A beautiful symbiotic relationship, except that the increasing concentration of farm animals and the conversion of marginal lands into corn production means that a lot of nitrogen and phosphorus ends up in Iowa lakes and rivers. Increased nitrogen use has exacerbated the nutrient problem.  In 1970, American farmers used 7.5 million tons of nitrogen per year.  By 2011, nitrogen use had increased 70%, to 12.8 million tons.

Yet, almost all of this pollution is currently beyond the reach of the Clean Water Act, classified as “nonpoint” runoff.  For example, recent studies indicate that 90% of the nitrogen and 66% of the phosphorus that Iowa contributes to the Gulf hypoxia problem comes from “nonpoint” sources.

The Des Moines Water Works (DMWW), which provides drinking water for half a million people in central Iowa, has taken action to bring more of this runoff under CWA control.  DMWW draws its water primarily from the Raccoon River, which regularly exceeds the nitrate standard of 10 mg/liter.  As a result, DMWW has installed what it calls the world’s largest nitrate removal system, which costs $7000/day to operate.  In addition, the equipment will need to be replaced soon, at an estimated cost of $76 to $183 million. 

The TMDL study for the Raccoon River concluded that 90% of the nitrates were coming from what it classified as nonpoint sources, largely agriculture.  While some of that is surface runoff, a large percentage of the land in that area is drained by subsurface tile lines – large PVC pipes that channel water from under cropland.  In some areas upstream of the DMWW, over 75% of the land mass is drained by tile lines.

The DMWW lawsuit, filed last March, alleges that these tile lines are “point sources” of water pollution, which therefore need permits under the CWA.  There is little question that the tile lines are “pipes,” which meet the statutory definition, and that they convey pollution to nearby navigable waters. 

The sticking point is the CWA’s exemption for “agricultural stormwater discharge.”  The DMWW lawsuit alleges that the tile lines transport polluted groundwater, rather than surface water, and therefore do not discharge stormwater at all.  Experts can testify that the purpose of the tile lines is to lower the water table, thereby extending the root zone of crops.

DMWW did not sue individual farmers; instead the suit is against three upstream counties, which constitute drainage districts under Iowa state law and therefore have control over the tile lines.  If DMWW is successful, the Iowa Department of Natural Resources would be required to issue permits, with some form of effluent limitations, to the drainage districts.  Effluent limitations might be based on buffer strips or wetlands or even wood-chip bioreactors, all of which reduce nitrate loads. 

The lawsuit also includes state law claims seeking monetary damages and injunctive relief, based on nuisance or negligence, in addition to several constitutional law claims.  In January, U.S. District Judge Mark Bennett certified four questions of state law to the Iowa Supreme Court, mainly concerning whether the drainage districts, as creatures of state law, enjoy immunity from the state law claims. 

Trial is now set for August, although the certification of state law questions may eventually require a continuance.

In a state dominated by agriculture, the lawsuit has been extremely controversial. One rural state senator urged farmers to boycott the capital city, and Governor Terry Branstad opined that “Des Moines has declared war on rural Iowa.”  The Governor and some farm groups believe that the state’s 2013 Nutrient Reduction Strategy should be given more time to work.  Critics maintain that the Strategy, which relies on voluntary efforts, is woefully underfunded and will therefore never achieve significant progress. The state legislature is considering schemes to increase funding for water quality, but the chances of forestalling the lawsuit are slim.

In a larger sense, the DMWW lawsuit is the latest in a series of attempts to bring agricultural pollution sources under greater regulatory control.  In 1994, the C.A.R.E. v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) began this series, by holding that the runoff of manure spread by a dairy farm could constitute a CWA point source.  More recently, in Alt v. E.P.A., 758 F.3d 588 (4th Cir. 2014), the Fourth Circuit rejected EPA’s attempt to bring polluted discharges from a poultry operation within CWA point source control.   In January 2015, the Eastern District of Washington found that a large dairy operation’s manure, stored in lagoons and applied on fields, could be “solid waste” under the Resource Conservation and Recovery Act. Comm. Ass’n for Rest. of the Env’t, Inc. v. Cow Palace, LLC, 80 F. Supp. 3d 1180 (E.D. Wash. 2015).

All of these lawsuits, however, attempt to apply 1970s laws, written when the family farm dominated agriculture, to pollution associated with modern industrialized agriculture.  Until Congress or state legislatures deal with agricultural pollution head on, we can anticipate further attempts to make the old statutes respond as well as they can to our modern water pollution problems.

- Jerry Anderson

Guest blogger Jerry Anderson is the Richard M. and Anita Calkins Distinguished Professor of Law at Drake University Law School.  He also published a longer piece on this case in the Environmental Litigation and Toxic Torts Committee Newsletter, Vol. 17, No. 2, February 2016, by the American Bar Association.

February 16, 2016 | Permalink | Comments (0)

Monday, February 8, 2016

What the New Adverse Modification Rule Doesn't Do

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out activities likely to result in adverse modification of critical habitat.  That sounds like a powerful prohibition, but for years, figuring out what counts as adverse modification has been a challenge.  One of the most vexing questions has been whether small increments of habitat degradation qualify as adverse modifications—and, if they do not, how to draw a principled distinction between those incremental changes that qualify as adverse modification and those that do not. 

Last week, the United States and Fish and Wildlife Service and the National Marine Fisheries Service took what could have been a significant step toward resolving this question; they released a long-awaited regulation that defines adverse modification.  But in two key ways, the new regulation falls short of answering critical habitat’s crucial questions.

The new regulatory text is as follows:

Destruction of adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.  Such alterations include, but are not limited to, those that alter the physical or biological features essential to the conservation of the species or significantly delay the development of such features.

The first big issue with that language is that it doesn’t clarify much about what counts as adverse modification.  The key word here, of course, is “appreciably.”  It’s a classic lawyer’s wiggle word: flexible enough to mean anything between “not very much at all” and “kind of a lot.”  In the preamble, the agencies add a little more specificity.  Appreciably, in their view, means something similar to considerable, which means something akin to noticeable, which sounds more like a pretty low standard.  But the agencies go on to explain that not just any discernable adverse change in habitat quality will qualify as adverse modification, and they also explain that what counts as appreciable will be judged while looking at the critical habitat area as a whole, not just the specific action area.  That’s likely to make a difference; things generally look smaller when one views them from farther away.

In addition to leaving the adverse modification standard fairly fuzzy, the new regulations also retain a curious paradox in the agencies’ treatment of cumulative impacts.  Many species are imperiled by the incremental whittling away of their habitats, and that raises a question: if a small change is part of a larger trend, and that larger trend of habitat modification clearly poses problems for the species, does each contributing increment count as adverse modification (or jeopardy, which is the other major prohibition in section 7 of the ESA)?  Does that cumulative trend even affect the calculus?  As other commentators have noted, the services have struggled with these questions as well, often adopting approaches that left species with little protection from cumulative habitat loss.

The new regulations don’t fix that problem.  Instead, the preamble clearly states that while the services will look at all of a species habitat when judging whether habitat modifications count as appreciable, they will only look within the action area when assessing cumulative impacts.  That means a biological opinion could quite plausibly decline to find adverse modification because a species has a relatively wide range, even if similar actions are degrading species habitat across that range.  If the basic goal is to protect species, that doesn’t make much sense.  The approach, if followed carefully, would mean assuming that range-wide trends will make up for local increments of degradation, while avoiding the analyses that would often prove that assumption false.

This isn’t just a hypothetical concern.  The old regulatory language used similar words and allowed similar flexibility, and standard practices therefore aren’t likely to change.  In a 2012 study, I took a close look at those practices, and I found that the services were routinely declining to find adverse modification even for projects that would (a) make habitat worse in the action area; and (b) contribute to a range-wide trend of habitat degradation.  Their reasoning, usually, was that the project-specific change, when viewed at a landscape scale, was too small to count. 

So what could the services have done differently?  These are tricky issues, and it’s much easier to take pot shots than to come up with a better alternative.  Any critic also ought to acknowledge that the services do strive, in almost every consultation process, to change projects in ways that protect species, and that they do so in the face of often-intense political opposition.  But even with these challenges, I do think there are possibilities. 

The problems with cumulative impact analyses ought to be the easier fix.  It would take a little more work, but the services could take into account range-wide trends when they perform such analyses.  The thresholds problem is harder.  But one intriguing possibility (which the services, for now, have declined to pursue) would be to use recovery plans to set default thresholds for what counts as an appreciable adverse modification.  Those thresholds could be set at a level sufficiently protective to ensure against cumulative degradation of species habitat, and thus could link decisions on individual projects into larger plans for the conservation of species.  That, in turn, would mean turning recovery plans from documents of aspiration into documents of regulation, which the services are hesitant to do.  But if the services are going to come up with a principled distinction between modifications that really are adverse and those that are too small to count, establishing a link to conservation planning seems like a sensible way to start.

- Dave Owen

February 8, 2016 | Permalink | Comments (0)

Wednesday, February 3, 2016

The Florida Fracking Bill

Many of you have likely heard that Florida is slowly moving toward allowing hydraulic fracturing (“fracking”) within the state.  The debate began when a company from Texas drilled a horizontal well in Collier County, Florida, into the Lower Sunniland shale formation.  In December 2014 the company conducted what was called a “workover operation” on the well.  This workover operation involved “stimulating” the rock formation around the well so that it would produce more oil and gas than would be produced if the well was simply drilled laterally through the rock.  Specifically, after drilling the well the company perforated the casing (lining) in the part of the well in the rock formation from which oil and gas would be produced and then injected acid down the well; the acid traveled out of the perforations and into the rock, thus releasing oil and gas.  Some people call this technique fracturing, although others would simply call it acidizing. The more traditional form of hydraulic fracturing or “fracking” now common in the United States—the slick water technique—is different.  It involves injecting water and chemicals down a well at very high pressure.

When the company conducted the workover operation in late 2013, all that was required under Florida law was to timely notify the state Department of Environmental Protection that the company was going to complete the workover operation—a requirement that the company followed.  The timing of the operation was not ideal, however, in terms of giving the DEP time to inspect the well and watch the operation.  The company, after briefly delaying the operation to give the DEP a bit more time, began the workover operation on December 30, 2013.  The company continued the operation through January 1, 2014.  In the midst of the operation the DEP issued a Cease and Desist order.  (See p. 15 of the hyperlink.)  The company and the DEP later agreed to a Consent Order, in which the company committed to: pay a civil fine of $20,000 and an additional $5,000 to cover DEP investigation costs; provide material safety data sheets describing all materials used in the Workover Operation; identify the total volume of water used in the operation; describe the storage capacity that the company maintained on site for the flowback water that came out of the well after the workover; and retain a third-party expert to assess whether there was likely a violation of groundwater quality standards, among other promises.

More recently, a company from Dallas, Texas, announced that it wanted to begin exploratory work to identify potential oil resources underlying Calhoun and Gulf Counties in North Florida.  The Collier County incident and more recent proposals for further exploration triggered increased legislative attention to oil and gas drilling and fracturing in the state.  Numerous local governments have promulgated ordinances encouraging bans on fracturing (see, e.g., Broward County’s resolution), and the state legislature has now entered the fray.  A proposed chemical disclosure bill for fracking has been kicking around in the Florida Legislature for several years, but the bill never passed.  This year, things look different.  Last week the Florida House approved a bill that would allow hydraulic fracturing in the state, although only after the state Department of Environmental Protection completes a study of the impacts, writes rules addressing fracturing, and the legislature approves those rules.  Under the bill, the DEP would be required to report its findings to the Governor and state legislature by June 30, 2017, and the study would have to be peer reviewed.  The DEP would have to adopt fracturing rules by March 1, 2018. Other important aspects of the bill include local preemption, in which local governments would be permitted to “enforce zoning or land use requirements” that affect oil and gas production and related activities but could not “effectively prohibit, or inordinately burden” these activities, and a requirement for disclosing fracturing chemicals through FracFocus.

It is difficult to tell how the bill compares to other state fracturing laws because the study has yet to be completed, and the regulations are yet to be written.  The bill is somewhat promising from a risk prevention perspective in that it would place a moratorium on fracturing until the study and regulations are complete—a practice similar to that followed by New York and Maryland before those states banned or placed a moratorium on fracturing.  But the study required by the legislature would not force the DEP to consider the many surface impacts of fracturing—focusing instead primarily on groundwater (and not necessarily on surface spills that can also impact groundwater).  Further, if the DEP in its study only followed the requirements of the proposed bill, the study would not thoroughly address issues such as waste disposal, air pollution, truck traffic, and public health impacts.  Further, many Florida voters seem to prefer to simply ban fracturing in the state in light of the importance of natural resources and tourism here, and in light of the fact that we don’t appear to have abundant oil and gas resources as compared to many other states.  In other words, it’s not clear whether the majority of voters believes that the potential financial and environmental costs of expanded oil and gas development in Florida would be outweighed by the benefits of the somewhat meager production that would likely result. 

Hannah Wiseman

Hannah Wiseman is the Attorney's Title Professor at the Florida State University College of Law.

February 3, 2016 | Permalink | Comments (0)

Tuesday, January 26, 2016

Win Money, Prestige, and Glory, and Improve the Human Condition

Several environmental law writing contests are currently seeking student submissions:

  • The ABA SEER’s Public Land and Resources Writing Competition (more information at http://www.americanbar.org/groups/environment_energy_resources/membership/law_student_resources/writing_competitions.html)
  • ABA SEER 2016 Endangered Species Writing Competition (more information at http://www.americanbar.org/groups/environment_energy_resources/membership/law_student_resources/writing_competitions.html)
  • The ELI/Beveridge & Diamond Constitutional Environmental Law Writing Competition (more information at http://www.eli.org/constitution-courts-and-legislation/2015-2016-beveridge-diamond-constitutional-environmental-law-writing-competition).

January 26, 2016 | Permalink

Monday, January 25, 2016

Federal Bureaucrats Outside Washington

Few clichés are more timeworn than equating federal governance with bureaucrats in Washington, D.C.  And that equation is rarely meant kindly.  Federal bureaucrats, according to common critiques, cannot match the particularized knowledge and localized sensitivities of their counterparts in state and local government.  Nor are they as accountable as their state and local counterparts.  Nor, the critics often contend, are they likely to govern as well.  Politicians, judges, and academics make statements like these all the time, and this conventional wisdom forms a key part of the bedrock upon which our federalism debates are constructed.

But are these accusations actually accurate?  Sometimes, no doubt, they are.  But in a new article--just published in the UCLA Law Review--I argue that these stereotypes overlook a few key facts:

  • most federal government employees work outside Washington;
  • much of the federal government’s decision-making occurs outside of Washington D.C.; and
  • much of the interaction between the federal government and state and local governments—and private businesses and citizens—occurs outside of Washington, D.C.

I explored the consequences of this geographic decentralization through a series of interviews with regulatory staff at the U.S. Army Corps of Engineers, the agency with primary day-to-day responsibility for implementing section 404 of the Clean Water Act (among many other tasks), and with businesses and other government agency staff members who routinely work with the Corps.  The result is a more nuanced portrait of the geography of federal governance—and some interesting (I think) implications for debates about federalism and administrative law.

I hope that discussion will be of interest to anyone following current debates about section 404.  The new Clean Water Rule has placed section 404 in the crosshairs of litigators and legislators from across the country.  Federalism is already central to that controversy; advocates are claiming that the rule is a direct threat to the core values of our federalist system.   The article supports a different view.  The internal geography of the federal government, I argue, both increases sensitivity and accountability and offers states important—though bounded—opportunities to tailor the governance of stream and wetlands to their preferences.  The geography of federal governance, in other words, can and does advance the values espoused by federalism’s strongest proponents.

More broadly, the article holds lessons that reach across multiple fields of federal governance.  Not every agency operates like the U.S. Army Corps of Engineers, of course, but many other agencies are geographically decentralized.  That decentralization affects the ways they govern, both for better and for worse, and studying those effects is well worth doing. 

And at the very least, the article ought to give judges and law professors pause before they equate federal governance with bureaucrats in Washington.

- Dave Owen

January 25, 2016 | Permalink | Comments (0)

Friday, January 22, 2016

A More Cautious Exercise of the Precautionary Principle - the Case of Land Development


As with most environmental law classes, my class begins by discussing drivers of environmental conflicts. This entails a discussion, of course, of scientific uncertainty and the exercise of the precautionary principle. I try to lay out for the students the competing thoughts on the precautionary principle by discussing a hypothetical product in the marketplace, demonstrating that the question ultimately boils down to: “do you ban a product until it is proven safe, or do you allow product until it is proven harmful?” Of course, it is difficult, if not impossible, to ever have scientific certainty. There are also risk-risk balances to strike. For example, we banned DDT in the United States because it causes cancer, but we might promote DDT use in places where malaria kills far more people and at a younger age than does cancer. The precautionary principle obviously plays out in a similar way with regard to many of our pollution problems. Whether it be mercury from coal-fired power plants, arsenic in drinking water, BPA leaching into ocean water, or carbon dioxide from numerous sources, we have a wide range of precaution available to exercise. In the climate change context, we worry about being overly cautious today, curbing important developments in society, and then climate change impacts not being as severe as our models predict. On the other hand, if we are not extremely cautious now, things may be a lot worse than we can imagine and worse than even the most dire models project. We simply do not know for certain, even if we feel fairly confident that things will tip toward the worse end of impact projections. The debate about how cautiously to exercise the precautionary principle in these circumstances is understandable. Cass Sunstein has argued  throughout his career that if we are overly cautious with regard to products in the marketplace, for example, then we may do more harm than good—we may keep a lot of products out of the marketplace that would do great good for society even if a few slip through that will do harm.

I would argue that land use, however, presents a different set of challenges when deciding how cautiously to exercise the precautionary principle. With pollution or chemicals in products in the marketplace, the sky is the limit on both the types of harms that could be created and the technologies that can be developed to either replace those products or curb their harmful effects. So you effectively have a moving target on both ends—the product or activity may flexibly adjust to a wide degree on one end, while the solution or technological fix may flexibly adjust to a wide degree on the other. The land base is different. Land is finite. No amount of technological fix can create more land. We can build up, certainly, and put our parking lots under our buildings, and so on. This, in effect, may be characterized as creating more land. But at the end of the day, humans engaging in activities on the land base are dealing in a finite resource.

This is why what is happening to the land base in my hometown of Baton Rouge, and indeed all over the country, is so troubling. The image at the top of this post is of an area not far from Louisiana State University's campus that has been recently cleared for development.  My students tell stories about this area as an ecological treasure in which they used to play as children, being exposed to wildlife, waterways, and other values provided by the forest (perhaps some of these students created the sign protesting the development). Miles and miles of this strip of land bordering a road south of LSU's campus have been cleared in the last two years. And you can see this effect taking place in dramatic fashion in Baton Rouge or in your neck of the woods by using this useful tool (tracking land use change via satellite since the early 1980's). Interestingly, this plot of land is only about half a mile from the Mississippi River levee. If it weren’t for the levee, the area would likely be navigational wetlands subject to Clean Water Act section 404 permitting. As it stands, however, it can be developed with impunity unless the city steps in to curb the loss of open space. Ironically, the development that is going to replace the woods is called....wait for it....Wildwood.


Wildwood. Seriously. The irony would be laughable if it weren’t so sad.

I’m working on a research project arguing that if we would do a better job of exercising the precautionary principle through land use decisions at the state and local level, we can reduce the size and scope of the federal bureaucracy. We have very good scientific data demonstrating that species are more likely to become endangered when their habitat is fragmented. Species diversity is correlated directly with the amount of habitat available. So if we could do a better job of reducing urban sprawl and conserving habitat and open space at the state and local level, we can reduce expenditures and bureaucratic expanse under the federal Endangered Species Act. Similarly, science is fairly settled on the impacts of impervious surfaces on water quality. The degradation to the nation’s waters increases exponentially as the percentage of land in a watershed becomes impervious. So, by reducing urban sprawl and preserving open space, state and local governments could reduce federal expenditure and bureaucracy under the federal Clean Water Act. We also know the data behind urban sprawl and mobile source air emissions. So by reducing urban sprawl and preserving open space and concentrating development through the use of urban growth boundaries and density requirements, mobile source emissions could be decreased, reducing federal expenditure and bureaucracy under the Clean Air Act.

In the end, we must do better by our land. By "removing the woods," we are creating the very problems that then require us to create massive and expensive federal bureaucratic fixes. It is said that the definition of insanity is doing the same thing over and over and expecting a different result. But I would posit that another definition of insanity is purposefully creating an avoidable problem that you then must create increasingly complex solutions to address. A better exercise of the precautionary principle in land use development could go a long way toward stopping the insanity.

- Blake Hudson

January 22, 2016 | Permalink | Comments (0)

Tuesday, January 19, 2016

How the NFL Ducked CEQA

Last week, Los Angeles celebrated the return of professional football.  Overlooked in the celebration, however, was the fact that the NFL just slipped through one of environmental law’s biggest loopholes. The Rams’ new Inglewood stadium will not be subject to the California Environmental Quality Act (CEQA) – the state’s major environmental protection law – because the stadium plan was approved through the ballot initiative process.

Under California law, proposals enacted through the initiative process are exempt from CEQA, even though the exact same proposal would be subject to extensive environmental review and mitigation requirements under CEQA if passed legislatively.  So regardless of the environmental impacts of the project – and whatever the benefits, the 200-plus acre, 80,000 seat, 10,000 parking spot stadium will clearly have enormous environmental impacts – since the Rams’ stadium proposal was enacted by ballot initiative, CEQA is simply inapplicable. 

Before explaining how the NFL achieved this coup, some background on CEQA for those unfamiliar with it:  CEQA was the first state environmental law to be enacted after NEPA and is one of the most rigorous environmental laws in the nation.  Like NEPA, CEQA requires the preparation of an environmental assessment (an environmental impact report, or EIR, in CEQA terminology) to identify adverse environmental impacts of proposed projects.  CEQA requires an EIR not only for administrative actions by the state, but also for legislative actions by local governments, as well for private activities, to the extent that a government approval is required to conduct those activities.  And unlike NEPA, CEQA imposes both a procedural and a substantive mandate.  Projects cannot be approved “if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects.”  If an EIR identifies significant adverse environmental impacts of a project, CEQA generally requires that those impacts be addressed through mitigation measures, or the project can be denied.

CEQA is thus a powerful tool for government transparency, citizen involvement, and environmental protection.  By requiring analysis of environmental impacts and consideration of mitigation measures and alternatives, CEQA creates a process by which a developer is brought to the table to address the most problematic parts of a project.  From a developer’s perspective, however, CEQA can feel less like an opportunity for negotiation and more like an obstacle to overcome.  CEQA lawsuits can stop – or significantly slow – a project in its tracks. In San Francisco, for example, opponents of a proposed NBA stadium for the Warriors have hired David Boies and other high profile litigators to launch a CEQA lawsuit against the project, saying they are prepared “to litigate until the cows come home.”  And earlier NFL stadium proposals in Los Angeles failed in part because of the threat of CEQA litigation (eventually, the state legislature passed one-time exemptions from CEQA for those stadium proposals, but the proposals never took off). 

Using the initiative process to avoid CEQA altogether, then, is understandably tempting to developers.  If the ballot box loophole ended here – with proposals submitted to voters exempt from CEQA, even if the exact same proposal, passed legislatively, would be subject to CEQA – it would be troubling enough.  Voters may not intend to pass initiatives that are harmful to the environment, but depriving voters of information about environmental impacts means that they are more likely to unintentionally do so.  CEQA was enacted precisely because legislators were failing to consider the environmental impacts of their decisions in the absence of a legal mechanism to force them to do so; there is little reason to expect voters as lawmakers would behave differently.

But the ballot box loophole is even bigger.  Initiative sponsors can actually avoid an election altogether, and still take advantage of the CEQA exemption for initiatives if the city council approves the ballot measure directly – which is exactly what happened with the stadium initiatives in both Inglewood and Carson.  Before voters in those cities even had a chance to vote on the stadium proposals, the city councils in both cities opted to approve the initiative proposals without any election at all, while still avoiding CEQA compliance.   

So by funding a $1.7 million ballot initiative, Rams owner Stan Kroenke essentially paid his way out of having to comply with California environmental law.  CEQA admittedly is in need of reform to make it a less time-consuming, expensive, and overly bureaucratic process.  But the fact that current law allows the NFL and other deep-pocketed developers, like Wal-Mart and oil companies, who have also utilized the ballot box loophole to avoid complying with CEQA, is deeply troubling.  Not only does it undermine the environmental protection and public disclosure goals at the heart of CEQA, it exacerbates the capture of the initiative process by special interests.  Furthermore, because larger developers are more likely to be able to afford the cost of sponsoring initiatives, the ballot box loophole means that smaller developers will likely continue to be subject to CEQA, while the largest developments – those most likely to have the most significant environmental impacts – can evade CEQA by utilizing the initiative process.

In a recent decision affirming that CEQA review is not required before direct adoption of an initiative by a city council, the California Supreme Court made clear it is not its responsibility to remedy the ballot box loophole.  Thus, eliminating the ballot box loophole will require legislative action to amend both CEQA and the state Election Code (for a detailed discussion of suggested statutory changes, see 40 Ecology Law Quarterly 833, 871-75). Whether Sacramento lawmakers are up to the task is unclear, but until CEQA’s ballot box loophole is eliminated, California’s signature environmental protection law looks more and more like a paper tiger – or rather, a paper ram. 

Kellen Zale is an assistant professor at the University of Houston Law Center, where she teaches and writes in the areas of property, local government, real estate, and land use law.  Her article on CEQA and the ballot box loophole, Changing the Plan: The Challenge of Applying Environmental Review to Land Use Initiatives, 40 Ecology Law Quarterly 833 (2013), is available here.

Disclosure: The author was formerly an associate at Gibson, Dunn & Crutcher, which represents a party involved in the Inglewood stadium development project.

January 19, 2016 | Permalink | Comments (0)

Monday, January 18, 2016

With Astonishing Speed, the Ninth Circuit Holds Hage Family Liable for Trespass, Damages

A little over a month ago, the Ninth Circuit heard oral arguments in United States v. Estate of E. Wayne Hage, a trespass action by the federal government against E. Wayne Hage and his family for decades of unauthorized grazing on public allotments in central Nevada.  The district court (Jones, J.) ruled in favor of the Hages, finding that their water rights created an easement by necessity to bring cattle onto the allotments (without a permit) and established a defense to the trespass claims, and that BLM officials who had investigated the trespass incidents and denied Hage’s applications for grazing permits violated his Due Process rights.  Moreover, the district court held those officials in contempt for their actions.  On Friday, in a strongly worded 30-page opinion, issued with relative lightning speed (slightly more than 30 days after oral argument), the Ninth Circuit vacated the easement ruling, reversed the APA ruling, and reprimanded the district court for both its legal reasoning and stated opinions during trial in this and other cases--opinions that reflected “both pre-judgment of the merits and bias against the federal agencies.”  Remanding the trespass issue for a determination of damages, the panel instructed that the case be assigned to a different judge, and wrote separately to reverse the contempt ruling against the two BLM officials.

As noted in the previous post about this case, the Ninth Circuit appeal arose out of a trespass enforcement action by the Department of Interior, which the Hages defended using a theory of vested grazing rights predating the passage of the Taylor Grazing Act in 1934.  Essentially, they argued that the Pine Creek Ranch had implied grazing rights under territorial law and the Treaty of Ruby Valley, by virtue of water rights acquired in the early 1900s.  The federal district court ruled against the Hages on those arguments, but, in a novel (and unsupported) interpretation of federal grazing laws, held that a) there is a property right for the purposes of the Due Process Clause (both “substantive and procedural”) in a grazing permit and b) that the federal government may not deprive a permittee of a grazing permit without observing “certain procedural safeguards.”  In addition, the court held, there are certain circumstances in which the federal government may not take “adverse action” against a permittee, regardless of the procedure.  The latter rationale formed the basis for the contempt ruling against the two BLM officials.  Remarkably, the district court also encouraged the Hages to counterclaim under the APA, which they did, arguing that the 1993 denial of E. Wayne Hage’s grazing permit application was arbitrary and capricious agency action.

On the trespass claim, the Ninth Circuit held that the Property Clause, its progeny cases, and in particular the Taylor Grazing Act, “revoked” any prior federal practices and policies of allowing indiscriminate grazing on the public domain.  Approximately 15 years after the Taylor Act was passed, Congress revoked any implied license to graze on national forest lands.  The court emphasized that both Congressional acts expressly disclaimed the creation of any “right, title, or interest” in the public lands leased or permitted for grazing.  With respect to the water rights argument (the district court had held that possession of water rights on a grazing allotment created an easement by necessity allowing the holder to bring cattle onto the allotment, without a permit, to water and graze them), the court held that the “preference” provision of the Taylor Act conferred only the benefit of being first in line for holders of water rights when a grazing permit is first offered, but that it has “no effect” on the independent requirement that “a rancher obtain a grazing permit … before allowing cattle to graze on public lands.”  Therefore, the court held that the Hages were liable for trespass under the federal grazing statutes, vacated the trespass ruling, and remanded the case for a determination of the damages owed.

As for the Hages’ counterclaim under the APA, the Ninth Circuit reversed, holding that it was time-barred.  The Hages had attempted to argue, under the continuing violations doctrine, that the federal government’s filing of the trespass suit in 2011 constituted a final agency action for which an appeal could be taken.  The panel disagreed, noting that the case upon which the district court relied for its ruling that a litigation action could constitute final agency action – AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) – actually reached the opposite result.  In sum, agency decisions about litigation are committed to agency discretion by law and cannot constitute the basis for an APA claim.

Finally, the Ninth Circuit remanded the case to the district court for a determination of damages on the trespass claims.  Notably, the panel instructed the chief judge of the district court to assign the remaining issues to a different judge because Judge Jones’s rulings on the trespass claim and APA counterclaim had “contravened” the law, and he had “grossly abused the power of contempt by holding two federal agency officials in contempt of court for taking ordinary, lawful actions that had no effect whatsoever on this case.”  In fact, over one-sixth of the opinion (almost 6 full pages) was dedicated to an explanation of Judge Jones’ conduct in this and other cases, demonstrating – in the words of the panel – “bias” against federal agency officials ("[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious"); “arrogance”; abuse of discretion in routinely declining to admit federal agency attorneys from out of state (noting that even a “reasonable observer” would conclude that his "feelings against out-of-state attorneys are both well-established and inappropriately strong"); and generally “troubling” views about the law and appellate review (“Judge Jones’ actions ‘can only be explained as a deliberate attempt to evade review by higher courts’”).  In a separate memorandum opinion, the panel reversed the contempt rulings against those officials, holding that the district court had applied “the wrong legal standard,” but even applying the correct standard, no finding of contempt was warranted.

This decision is certainly a victory for the federal government in its decades-long struggle to enforce federal grazing law against the Hage family, but it remains to be seen what will come of the Federal Circuit Court of Appeals’ consideration of the related takings claims in Hage v. United States. That litigation appeared to be finally resolved in 2012, but, through a series of post-trial procedural motions, the Hages have managed to stoke the litigation flames at least through 2016, and perhaps beyond.

Hillary Hoffmann

Hillary Hoffmann is a Professor at Vermont Law School, specializing in federal grazing law.  She and her colleague, Professor John Echeverria, wrote an amicus brief in the Ninth Circuit appeal, on behalf of NRDC and the Sierra Club.

January 18, 2016 | Permalink | Comments (1)

Friday, January 8, 2016

Junior Environmental Law Faculty Conference at Columbia Law School

Columbia Law School is again sponsoring its Sabin Center Colloquium for junior environmental law faculty.  The official announcement is pasted below.


Columbia Law School

New York, New York

May 2

​6-27, 2016​

This ​4th​  Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.  Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.  

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to sabincolloquium@law.columbia.edu by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 2​6​, and all day on May 2​7​) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year's competition and participating in the workshop will be:

​Robin Kundis Craig -- ​University of Utah College of Law

​John Dernbach -- ​Widener University Law School

Michael Gerrard -- ​Columbia Law School

​Hari Osofsky -- University of Minnesota Law School

Thanks, and good luck!

January 8, 2016 | Permalink | Comments (0)

Tuesday, December 15, 2015

An Important New ESA Paper, A Great Database, and Some Research Opportunities

Jacob Malcolm and Ya-Wei Li (both with Defenders of Wildlife) have just published a paper that really should be required reading for anyone interested in the Endangered Species Act.  Defenders has also created a database that offers exciting possibilities for additional research.  Here's a little more information about each:

The Study:

The study addresses implementation of ESA section 7, which prohibits federal agencies from taking actions likely to jeopardize the continued existence of listed species or to cause destruction or adverse modification of critical habitat.  Section 7 also prescribes a process, known as consultation, designed to ensure compliance with that substantive mandate.

Here's the key part of the abstract:

We analyze data on all 88,290 consultations recorded by FWS from January 2008 through April 2015. In contrast to conventional wisdom about section 7 implementation, no project was stopped or extensively altered as a result of FWS finding jeopardy or adverse modification during this period. We also show that median consultation duration is far lower than the maximum allowed by the Act, and several factors drive variation in consultation duration. The results discredit many of the claims about the onerous nature of section 7 but also raise questions as to how federal agencies could apply this tool more effectively to conserve species. We build on the results to identify ways to improve the effectiveness of consultations for imperiled species conservation and increase the efficiency of consultations.

Some of the findings in the body of the article are even more dramatic.  Most importantly, during the study period, FWS issued only two jeopardy opinions and one adverse modification opinion.  I think that is amazing.  Past studies (including my own work) have consistently found that jeopardy and adverse modification opinions are rare.  But in recent years, with FWS at least (NMFS will await a later study), their frequency has dropped by orders of magnitude, and they've become essentially non-existent.

So what's going on?  The obvious answer--which Malcolm and Li, to their credit, do not just leap to--is that FWS has abdicated its responsibilities under section 7.  Another, more hopeful possibility is that FWS, action agencies, and project applicants are successfully negotiating changes to projects so that jeopardy and adverse modification opinions don't become necessary.  In my own research, I heard anecdotal evidence supporting the latter view.  One biologist, for example, told me he was about to send out several draft jeopardy letters, and he expected that each would prod the action agency to provide more protection; none would become finalized.  But I also found extensive evidence that FWS and NMFS were routinely allowing small acts of habitat degradation to proceed.  Li and Malcolm's study suggests that both dynamics are continuing, though they do not claim to know which predominates.  We do know, however, that in the past eight years, something about the dynamics has changed.

More broadly, there's a lesson here for anyone interested in how environmental law really works.  We often draw distinctions between hard and soft legal instruments.  The former block things, while the latter create subtle incentives toward adjustment.  This study shows the extent to which that distinction can be misleading--or, to put it slightly differently, the extent to which laws we might think of as classically "hard" function rather softly in practice.  Environmental law is largely about adjusting practices, and about making subtle alterations in systems of incentives.  Flat-out stopping stuff from happening is pretty rare.

The Database:

In addition to writing this study, Defenders wants to facilitate research by others.  Here's how Ya-Wei Li explained it in an email to me earlier today:

The study is getting most of the media attention, but the database is almost as important in my view because raw data on ESA implementation are rarely published online.  We published the information to encourage federal agencies and others to follow, as we’re big believers in using open data to inform efforts to improve the performance of environmental laws.  There are also some gold nuggets of information in the dataset, and we want to encourage researchers to run their own analysis and publish the results.

I couldn't agree more.  Building this database is a heroic effort and public service, and researchers ought to thank Defenders by using it.  Some potentially interesting research questions (many of which student authors might readily tackle):

  • What kinds of species are generating most of the consultation effort?  A common perception of the ESA is that it protects all sorts of obscure, weird creatures that no one really likes anyway.  Or, alternatively, some people think it doesn't do enough to protect those obscure, weird creatures, and that we're too fixated on charismatic megafauna.  Malcolm and Li's study includes some information about which species are the focus of consultations, but it's just a beginning.  One could potentially dig a whole lot deeper.
  • How often are consultations focused just on one specific species?  In my time in practice, I noticed that threatened and endangered species often came in bunches, and that actions to protect one often protected (and, on rare occasions, were in tension with) actions to protect others.  Think, for example, about old growth forests, or about the Sacramento/San Joaquin Bay Delta, both habitats in which whole suites of species are in trouble.  The consultation data might reveal something about how often species protections are synergistic.
  • Which agencies aren't consulting?  In my own research, I heard anecdotal stories about agencies that probably needed to consult but weren't used to doing it.  Data on who is consulting therefore are interesting, not just because they reveal who the repeat customers are, but also because they might reveal who isn't even coming to the store.
  • What kinds of projects are generating consultations?  Malcolm and Li include some summary tables on this issue, but I'd love to see more, and trends might also be interesting.
  • What kinds of protective/mitigation measures are most prevalent?  And are changes occurring?
  • Are there differences in protective/mitigation approaches among different FWS field offices?

That's just a beginning; I think there are many more possibilities.  

- Dave Owen


December 15, 2015 | Permalink | Comments (2)