Thursday, November 21, 2013

Stadium Sprawl


I am an avid sports fan. In a world that is often fraught with ugliness, I find that sports provides a nice, safe, uncompromised place for reflection on the better qualities of human behavior and circumstance (though sports can at times have its ugly side too, of course). My Major League Baseball (MLB) team is the Atlanta Braves. I have been a fan since they went from worst to first in 1991, when I held tightly onto my homemade tomahawk and lucky syrup bottle cheered vigorously during each game of the World Series. At that time, the Braves played at Atlanta-Fulton County Stadium. In 1997 they moved to Turner Field, which was built as part of the 1996 Olympic Games. Before Fulton County Stadium was turned into a parking lot, this is what the two stadiums looked like side by side:


Though some have argued that Turner Field is not a “particularly distinctive or noteworthy ballpark,” it makes for a wonderful baseball watching experience in my opinion. It has a new feel combined with the throwback style reminiscent of Camden Yards and other "retro parks" built in the last few decades. For a while Turner Field even sported the largest (or one of the largest) jumbotrons in professional sports. The stadium is not old or run down by any means. As Jerry Crasnick describes:

Turner Field, at 17 years of age, is younger than U.S. Cellular Field, Camden Yards, Rangers Ballpark in Arlington, Progressive Field and Coors Field -- all stadiums that have been built during the ballpark "renaissance" that's taken place in baseball over the past two decades.

In fact, the only problem I see with Turner Field is its location. Often, stadiums are either far outside of the city and relatively easy to get to and park (Rangers Ballpark in Arlington; Citizens Bank Park in Philadelphia), or they are in the city and easy to walk to (Coors Field in Denver; Busch Stadium in St. Louis). Turner Field is neither - it is in no-man's land, too far to walk to (with few public transportation options) and not easy to drive to and park. Other than that, however, it is a perfectly functional and nice ballpark (and I've visited many - I only have 3 more MLB stadiums to visit of the 30 major league teams - part of my bucket list).

So when I heard that the Braves were ditching Turner Field and moving to the suburbs of Atlanta to build a new park I was quite shocked. Look, I get it. Lease terms are not always fair, and it takes two sides to work things out. I also get that buildings, including stadiums, have a lifespan. Once they get into old age both structurally and functionally it may be time for a change (think of Tropicana Field in St. Petersburg, FL, and home of the Tampa Rays - probably the worst place to watch a baseball game in the history of the sport, including little league fields across the United States. Of course, with Tropicana it is not structural age that is the problem, but rather the lack of functionality. But see Fenway Park). Finally, I get that sometimes teams leave stadiums that are not suited to their sport. This is what happened recently when the Miami Marlins left the stadium where the Dolphins play professional football - the venue was designed to be a football stadium and is a terrible place to play or watch baseball. So I could hardly fault some professional teams for looking elsewhere to play. But leaving this well-functioning, relatively new stadium? I am sure it seems to make a lot of economic and business sense for the Braves, but from a strictly land use and environmental perspective it symbolizes the problem of poor land use planning and sprawl in the nation.

The new stadium will be located located about 10 miles north of downtown, at the I-75, I-285 intersection, and will cost approximately $672 million to build, according to a website devoted to the project. The development is projected to be "surrounded by entertainment options and green space, with the hopes of making the development a year-round destination." But, as we have seen in the past, the grand premonitions of economic boon do not always come to fruition. As noted by Jeff Schultz: 

When the Georgia Dome was built, which necessitated the clearing of land and relocation of several churches, political leaders similarly trumpeted the possibility of tremendous development in the area. We heard similar sound bites when the Olympic stadium (which morphed into Turner Field) was built. But anybody who looks up and down Northside along the Georgia Dome, or Capitol Ave and the streets surrounding Turner Field, knows that revitalization never took place. They remain scarred neighborhoods. Residents did not benefit from the construction of sports facilities. In any city, they almost never do.

Notwithstanding the uncertainty of economic growth, there are environmental impacts to consider. To be clear, it is not as if the new park will be built in pristine wilderness, as you can see from this satellite photo depicting the already sprawling outskirts of Atlanta where it will be located:


Even so, there are invariably going to be environmental impacts resulting from the project: the removal of even more natural capital from the area, the energy intensive removal of prior infrastructure that was itself energy-intensively constructed (what are the carbon costs of all this stadium shifting?), watershed impacts whose contribution to already significant non-point source runoff problems in the area will be indeterminable until long after the project is completed, among a number of other environmental impacts. But here is the real kicker: Turner Field is set to be torn down after the Braves leave in 2017 to make way for, you guessed it, more development (at least we can legitimately call this development "infill"). Right at 20 years after this mammoth structure was built (an exceedingly energy intensive endeavor to be certain), it will be torn down.

This whole situation brings to light the many problems associated with land use planning in an "over-decentralized" system of government, where more than 88,000 disparate subnational governments act as rational herders on the national commons that is the land base and the natural capital present upon it. There is certainly no federal coordination, and states typically allow local governments a great degree of discretion in planning, especially if there are economic gains to be made. With so many jurisdictions implicated, individual projects may not appear to have a great environmental impact on the surface. But it is in the aggregate that so many of the intractable sources of environmental degradation, like nonpoint source water pollution, arise. It is basically as if 88,000 herders were in a nation-sized pasture standing stationary, adding sheep to their herd through new sheep births, until the increasing number of one herder's sheep eating grass resources merge with neighboring herds. Then suddenly, the grass resource is entirely consumed. Metaphorically it is the logic that drives a Radio Shack to move from the indoor mall of the 70's and 80's into the strip mall of the 80's and 90's, into the indoor-outdoor mall combo of the 90's and 2000's. The same activity taking place in three different spaces throughout time, while the prior two spaces remain unfilled on some vacant, blighted development space (for more discussion on the "dead mall" phenomena, see here). This is inefficient usage of land at its finest. Anecdotally, the logic reminds me of the time I was driving through Texas and saw a new Sonic restaurant franchise being constructed right next to a nearly identical Sonic restaurant franchise that was closed and abandoned - on the adjacent lot. Seriously.

The refrain is all too common in the environmental field - the federal government does not regulate nonpoint source pollution from agriculture, stormwater, and other vectors because the regulation of such pollution is a state and local government land use regulatory role. Yet we see eutrophication and toxification of our waterways (resulting in fisheries impacts in both freshwater and ocean systems), loss of biodiversity from habitat fragmentation due to development (which increases federal tax payer expenditures later in efforts to protect species threatened with extinction), continued loss and degradation of wetland functionality, traffic congestion and associated air quality impacts from the suburbanization of our cities, increased economic and environmental costs foisted on society through disaster events like flooding (from building in floodplains), among a number of other environmental ills. Is it really any surprise that these problems are arising? Can we really continue to sit back and act like we don't know what contributes to all of these problems? It seems clear that we know, so maybe we just don't care? Clearly the aggregated effects of individual municipal land use planning decisions play a key role in all of these problems. It seems that we either need to do something about it, and get serious about growth boundary protections and other land use planning options available to cities and counties that encourage (or compel) infill development, or just make a choice that we are going to live in an increasingly degraded environment. This is an ethical choice - we should either make an ethical decision to remedy the poor land use planning that contributes to this multitude of environmental ills, or accept that continuing to allow our environment to degrade is the ethical choice that we have made. We should at least be honest about it. We cannot keep pretending that we do not understand why all of the above environmental problems are proceeding apace - it is clearly because individual decisions like the Braves' decision to leave a perfectly functional stadium and build another one elsewhere do not appear environmentally harmful after an isolated, narrowly focused cost-benefit calculation. But in the aggregate the collective rationality of 88,000 local governments is doing great harm to the national natural capital commons. And it is not about not developing. It is about developing smartly and using land and the natural capital present upon it efficiently the way we should use any scarce and finite resource.

Probably the best way to sum up the logic of inefficiency in the usage of land that drives so many of our land use decisions are the words of one major league general manager, who (as Crasnick describes) stated:

"What are you thinking if you're the Rays? . . . They can't even get one stadium -- and the Braves have two?"

- Blake Hudson

November 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

MOOC Part II: MOOCs for Environmental Law Profs

I wrote a little bit a bout my first experience with MOOCs last week. I wanted to follow up to say a little more about the other MOOC I signed up for, which was a very different experience.

While my first MOOC was to help me figure out how to do a MOOC myself (and just to learn about the process), my second MOOC was to improve my research. Here is where I have a confession to make: I never took stats. I am terrible at stats.  Not so unusual for a law prof but not really acceptable for someone with a graduate degree in Environmental Science and Policy (It's actually a degrees in Environmental Science, Policy, and Management from the Society & Environment concentration because frankly Berkeley just can't seem to make simple names for their departments.) I use stats in some of my work, but only by relying heavily on co-authors, post docs, and hiring graduate students.  So I decided to take a stats course.

Where to go to learn stats? Well it seems to be a common enough need that every MOOC company has a stats course. There are also a couple of in person law-prof focused stats courses out there (like the one that happens every summer at UCLA). I ended up choosing a course from Udacity. Udacity's offerings are not as numerous (feels more like training seminars than college courses), but I really liked the format and the faculty. Unlike Coursera, you can take a Udacity class at your own pace. You could just power through the whole thing in one big Stats week or follow my path and take 6 months to finish the course (no I am still not done so don't ask me to look over your stats yet). Of course if you need the scheduled course and discussion times to motivate you to finish the course, then Udacity isn't for you but I am finding it very helpful. I still miss the student-teacher interaction and would benefit from having classmates to work on problem sets together, but it is cheaper and easier than the other options for learning stats out there.

So all this made me think about what other types of courses could be helpful to environmental law professors to aid us in our research and teaching. Not where would we point our students, but what might we want to take ourselves. I am not so interested in taking an environmental law course, but perhaps a chemistry from environmental lawyers course would be good. What else? Conservation biology? Psychology?

Jessie Owley


(btw - can we talk about how much fun it is just to say the word MOOC. mooc mooc mooc. Almost has good as Frack! The environmental law lexicon is expanding in a way quite pleasing to the palate and the ears)


November 20, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, November 15, 2013

MOOCing it Up

I recently finished my first MOOC. Not teaching a MOOC mind you, but I decided to take a couple of MOOCs. I enrolled in two and thought I would share some of my experiences and thoughts with you, particularly on the role of MOOCs in teaching Environmental Law. I enrolled in two different MOOCs for two very different reasons. I am going to talk about the first class today and chat more about my second experience next week.

I took a Climate Change course being offered by the University of Melbourne through Coursera. I chose this course for several reasons. Like many of my students, my choice was driven partly by schedule and professor. It was being offered August – October and taught by a slew of faculty including Jon Barnett, whose work I have read often and have cited periodically. My goal in taking the MOOC was to learn how MOOCs work and get a feel for what it might be like to put together a MOOC. So I chose a course on environmental issues (frankly, I was also just curious to see what would be included in an undergraduate course on climate change).

I learned a lot with this course. First, I learned more about climate change that I had known before. The two weeks on physics was fun and new and the detailed examples of the South Pacific Islands were quite helpful. I think I probably ended up as a typical MOOC student in that I listened to most of the lectures, did some of the readings, and never turned in my final assignment. I loved being able to watch lectures anywhere on a variety of devices (including my laptop, ipad, and smart phone). It was great to be able to schedule my own work and to multi-task without guilt (I got lots of knitting done). While the schedule was flexible with this course, there were periodic deadlines and you did need to roughly keep up with the materials as they became available. I also enjoyed seeing the different ways of presenting the lectures visually (lots of power point and video) and found a website with links and videos to be helpful. I found myself often jotting down ideas for my own non-MOOC environmental classes. It was also very cool to have classmates from around the world. I don’t think I even interacted with any other Americans in my online conversations or peer review processes.

What didn’t work for me? Well the flexibility in some ways means that it was really easy to put off assignments or skip weeks. (I’ll confess, I was motivated to take the course but not actually to put a lot of time into when well, you know, I am supposed to be writing and stuff.) I hated not being able to ask questions. I got confused in one of the physics lecture and didn’t quite understand a diagram. In class, this could be asked quickly. In a MOOC, you can ask a question in an online forum (or perhaps on twitter or facebook) but it can take a while for the TAs to get around to answering everyone. The online discussions did not work for me. I couldn’t figure out how many were enrolled in this class but it was oodles and felt like gazillons. The pace of the online discussion was fast, and keeping up with it would have been 5 times the work of the rest of the course. The conversation was all over the place politically with a lot of vicious statements that I just don’t see as much in a class where people can see each other face to face. The peer editing was a mixed bag too. With these big classes, the faculty and even the TAs can’t grade the work. This is why everything is done by either peer review or multiple choice questions. This has its obvious limits. One that I didn’t think of until I got my peer reviews back though was that many of my peers struggle with English. I literally couldn’t understand the sentences in one of my peer reviews – made me think someone had typed something into google translate and put too much trust in the result (hey at least they gave me full marks).

Any Lessons for Environmental Law? I am always making my students do annoying stuff try new things. Over the past few years, my natural resources students have had blogs, wikis, and websites. I am thinking of making them tweet next semester (I know that is so 2010 – maybe we’ll do snapchat instead). So it is maybe not surprising that I was intrigued by the idea of doing a MOOC. I quickly concluded though that it is not a good approach for teaching environmental law – at least not the way I want to teach it. There is a strength in moving lectures online and letting students do some self-pacing, but I would not feel comfortable losing the group discussions and exercises that we do in my classes. While some of my colleagues are talented at writing good multiple choice questions that really challenge students and require application of knowledge and skills, I am not one of that ilk. It is important to me that my students work on written and oral advocacy. I want them to work in groups and I am crazy unwilling to hand off reviewing their work to someone else – yes I am that controlling. As of right now, you won’t see me offering a MOOC until I can figure out a way to incorporate those elements (perhaps the answer is making the MOOC and OOC to start with). For those of you not yet aware, there is an environmental law MOOC out there already up and running. It is a 6-week course and does not profess to be a substitute for a law school or even an undergrad course on the topic. Not sure when it will next be offered, but could be fun see what is covered. Anyone wanna be in my study group?

- Jessie Owley

November 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

An Un-Common(s) Catastrophe: Philippines and the Tragedy of the Commons

The "Tragedy of the Commons" is that everyone overuses resources to the point of extinction. Since no one has a vested property interest, no one has the incentive to moderate their activities. On the contrary, the exploitation continues. One might say that climate change is a "Tragedy of the Commons." Since no one owns the atmosphere, everyone continues to dump greenhouse gases. Except, climate change may not be a tragedy of the commons. Typhoon Haiyan that hit Philippines was of proportions that scientists have long predicted would occur, with increasing frequency, because of climate change. Islands have been dessimated, houses have been flattened, and several other properties have been destroyed, some beyond redemption. These are not commons. They belong to the people of Tacloban, to the people of Philippines. If climate change is the cause of intensified storms that destroy property and territory, the solution does not lie in creating property rights in the atmosphere. It lies in respecting the property rights that already exist. As nations meet for the 19th Conference of Parties to the United Nations Framework Convention on Climate Change, this is the question they should consider: how do we protect legal rights to property of others?

Deepa Badrinarayana

November 12, 2013 | Permalink | TrackBack (0)

Thursday, November 7, 2013

Standing to Challenge EPA's Coal-Fired Power Plant Regulations

Dan Farber has a new post on Legal Planet in which he argues that the coal industry and electric utilities will lack standing to challenge EPA’s new source performance standards for coal-fired power plants, which the agency proposed in September.  Dan contends that because low natural gas prices are making new coal-fired power plants uneconomical (as compared with new natural gas-fired power plants), would-be industry challengers to EPA’s regulations will be unable to show that the regulations cause them any injury.  In other words, as long as new coal-fired plants are not being built because they are uneconomical for reasons having nothing to do with the EPA regulations, the regulations cannot be hurting the industry.  The mere possibility that the industry may build new coal-fired power plants in the future if conditions change, Dan argues, does not constitute an injury under standing doctrine.

Dan’s standing argument has some force, although I don’t think it is a slam dunk.  Despite the precedent that Dan cites, the question of how likely a plaintiff’s injury must be to suffice for standing purposes often gets squirrelly.  See, e.g., Natural Res. Def. Council v. Envtl. Prot. Agency, 464 F.3d 1, 6 (D.C. Cir. 2006) (noting differences among courts in deciding when increases in risk can confer standing).

My point, however, is not to agree or disagree with Dan’s argument, but to question whether pushing the argument would be a good strategy for EPA or environmentalists.  It is quite possible that the cost of natural gas relative to coal will change in the future to the point that new coal plants would be economically viable in the absence of the new EPA regulations.  The EIA, whose projections Dan cites (by way of a Washington Post article), has been wrong before about such things, and in fact has been accused of systematically underestimating natural gas prices.  If a utility company lacks standing now to challenge the new regulations for the reasons Dan cites, I would think it would be able to challenge the regulations later if the price of natural gas increases (or the price of coal drops).  Normally such a challenge would be time-barred because the Clean Air Act has a sixty-day statute of limitations for challenges to regulations.  See 42 U.S.C. § 7607(b)(1).  But if a utility was barred from filing suit earlier, the statute of limitations would not bar a later suit.  See 42 U.S.C. § 7607(b)(1) (stating that petitions for review “based solely on grounds arising after” the expiration of the initial sixty–day period are timely if filed within sixty days of the new grounds); Honeywell Int'l, Inc. v. EPA, 705 F.3d 470, 472-73 (D.C. Cir. 2013) (applying this exception).

Thus, it is not clear to me that EPA would be better off with a putatively favorable ruling on standing now that leaves a latent industry challenge to the regulations out there waiting to ripen, rather than a ruling that allows a suit now and bars future suits.

--Todd Aagaard

November 7, 2013 | Permalink | TrackBack (0)

Monday, October 28, 2013

An Interesting Little Twist on Adaptive Management

For many years, adaptive management has been all the rage.  The basic concept is appealingly, if deceptively, straightforward: when we take actions that will have environmental consequences, we should monitor those consequences, learn from the monitoring, and adjust our actions based on what we learn. 

That seems eminently sensible, but in practice, adaptive management has often proven challenging.  There are many reasons why, but one of the most important is that the requisite monitoring is often missing.  There are financial disincentives to monitoring; it can be expensive, and money spent on monitoring is money not spent on other forms of environmental protection, or on other priorities.  And there are institutional disincentives.  If monitoring reveals the need to change course, that can be embarrassing to the decision-makers who selected the initial strategies, as well as frustrating to people who have relied upon those strategies.  As a consequence, monitoring is often shortchanged, and adaptive management programs often fail to involve much adaptation.

Recently, I stumbled upon a document that describes an innovative way of dealing with this incentive problem.  A group of federal and state agencies recently developed a guidance document entitled Determining Appropriate Compensatory Mitigation Credit for Dam Removal Projects in North Carolina.  As the title suggests, the intent of the document is to provide guidance to people (including mitigation bankers) who compensate for stream fill projects by removing dams.  That’s intriguing for a lot of reasons, and one involves the links between monitoring, offset ratios, and adaptation.

A little background should put that in context.  When regulators allow a permit recipient to use off-site mitigation to compensate for a project’s on-site impacts, they often use something called an offset ratio.  For example, a developer might be obligated to restore four acres of habitat in return for developing one acre.  Or a mitigation banker that restores four acres of wetlands might receive one acre of credits to sell.  The ratio is designed to compensate for a number of factors, including the temporal delay between the destruction of one area and the restoration of the other and the pervasive uncertainties about whether restoration projects will achieve lasting success. 

Like most mitigation programs, this guidance document contemplates using that approach.  But there’s a twist.  For credits generated by restoring the stream reach above the dam:

The applicant can select a predetermined amount of credit or conduct research that will better determine the extent to which anadromous fish are using the newly accessible habitat.  If the applicant can satisfy the Research Option criterion, it may be possible to receive mitigation credit exceeding the amount given with the predetermined option.

In other words, you can get extra credit if your monitoring demonstrates that the project succeeded (if your monitoring reveals that the predetermined ratio was excessively generous, however, your initial credit does not get revoked, though hopefully the agencies would use that information to inform mitigation ratios for future projects).  Implemented carefully, this approach could be a useful incentive to perform monitoring, or an effective way to compensate for the absence of monitoring.

There are obvious potential pitfalls.  The approach only works if the predetermined option is conservative.  Otherwise there will be limited incentive to monitor, and the environment also may come out on the losing end of too many deals.  It also only works if the researchers strive for objectivity, which may not be easy to do, particularly if they get their paychecks from the same entity hoping to claim an enhanced credit.  Accordingly, some sort of third-party monitoring system might be appropriate.  But those challenges, though real, seem manageable, and the concept therefore holds promise for addressing some of the perverse incentives that can limit adaptive management.

- Dave Owen

October 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Environmental Peer Review

Lots of people are up in arms about Adam Liptak’s piece in NYT where he trashes law reviews by rehashing arguments we have all heard many times before. I was surprised by the somewhat sloppy nature of the piece that cobbles together some random arguments on different aspects of law reviews and was amused by the fact that an article criticizing law reviews cited so many of them. Many others have already critiqued and/or agreed with the piece (I fall into both those camps myself), and I want to move the discussion to alternative forms of publication. Let’s talk peer review.

My completely unresearched feeling is that environmental law is more connected with peer reviewed literature than some of the other legal fields. I read and cite peer reviewed literature almost as often and law journals and cases. Additionally, peer reviewed journals like Conservation Letters, Environmental Management, and Conservation Biology periodically solicit reviews from me.

 Discussion question one: How many peer reviews should one do before feeling okay turning some down? I tend to do almost everyone I am asked to do unless I have a conflict of interest, but the frequency of request increases the more reviews you do so the pile is growing. One of my pals from grad school asserts that it is a 2 to 1 ratio (2 reviews for every one you submit). Frankly, it takes me a long time to do each review too. I would say it is usually a full day’s work for me. Not sure if I am faster or slower than other folks here. I have also been asked to review a few books and they take even longer.

I am also finding myself increasingly interested in publishing in peer reviewed journals. If I am hoping that actual land managers read my work, peer reviewed journals is the way to go. What if I want policy makers to read it though?

Discussion question two: Where should we publish if we hope to disseminate our ideas beyond other law professors? What do we think policy makers read? Anytime of book or journal? The newspaper? Perhaps has Adam Liptak suggests, it should be on blogs. In tweets? Instagram? Therefore all my subsequent posts will be about my research because that is clearly the best way to get Congress to change its approach to land conservation. Sean Nolon recently suggested I start a website, and I think someone else hinted that I should turn my research into a movie. We all know Judge Kozinski loves movies so maybe that is the best way to get him exposed to my brilliance. Of course, it isn’t really judges we expect to read our stuff – just their law clerks.

- jessie owley

October 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Liptak on Legal Scholarship

In today's New York Times, Adam Liptak has a short piece trashing law reviews.  The basic themes are pretty familiar: law review articles are too long and too esoteric (he refers to “the good old days, when it was not unusual for legal scholars to write about topics useful to lawyers and judges”); nobody reads them (in fact, “[l]aw reviews are not really meant to be read"); they’re badly written; and none of that is going to change.

It seems beyond dispute that there are issues with the law review system, and for a good and thorough discussion, readers might skip Liptak’s article and go straight to one of the recent pieces he cites.  But Liptak’s article is a mess.  Some of the claims are just silly.  Like pretty much all of my colleagues, I definitely do intend for my stuff to be read.  One can debate whether I’ve earned that readership, but saying—without any supporting fact or authority—that we don’t intend our articles to be read is the sort of mistake that even one of those “incompetent” law review editors would readily catch.

Only slightly less strange is Liptak’s assertion that “[t]he judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.”  Clearly blogs are a better sources of quick analysis of breaking news, but that’s because they can be written in a very short time.  On that measure, they also outperform books, but that doesn’t mean books lack value.  And if one wants analysis of an issue that didn’t just arise yesterday, then a deeply researched article, with every footnote checked by an army of law review students, is probably a lot more reliable than a blog post—just as a carefully researched article about the law review system is a much better source of useful information than, say, a New York Times article.

Beyond those low-hanging fruit, I think there are a few more subtle problems with Liptak’s analysis.  And because these problems aren’t unique to Liptak, they merit a bit more discussion.

The judge fixation.  The first fallacy is the presumption that one can assess the value of law reviews by quoting a few judges.  Liptak, for example, places heavy emphasis on a few familiar quotes from Chief Justice Roberts and Judge Dennis Jacobs, both of whom argue that picking up a law review article and sitting down to read would not be a sensible use of their time.  But that doesn’t mean law reviews are irrelevant to judicial decision-making.  I don’t think the judge I clerked for spent much time reading law reviews.  But I did.  When I tackled unfamiliar legal areas—which, for a clerk fresh out of law school, can be a weekly occurrence—I found that law review articles were helpful places to start.  Often I was more interested in their summaries of relevant law and in the sources they cited than in their recommendations, but not always.  In any event, those articles were quite useful to me, and, therefore, to my judge, even if he didn’t realize it, and even if I never cited them in the draft orders I wrote.  I suspect the same is true for the judges Litpak quotes. 

Moreover, some articles may be useful even if they aren’t valuable to judges.  Articles designed to help local officials better understand their powers, to encourage agencies to regulate in different ways, to help inform legal teachers, or to guide new legislative initiatives all can be quite valuable.  Obviously some legal scholarship should be useful to judges.  In the legal world, they do still matter.  But there’s no reason why all of it should be.

The misplacement fixation.  Another key critique of law reviews is that their system for placing articles is a mess, which leads to a poor correspondence between journal prestige and article quality.  The evidence is fairly overwhelming that the placement system does have systemic biases, most of which operate to the disadvantage of less-established writers.  But I’d argue that this isn’t that big a problem, and certainly isn’t a basis for dismissing the entire system as deeply flawed.  Good articles still get printed.  Bad articles are still easy to ignore, even if they’re highly placed.  And in my experience, other professors do a good job recognizing quality work, at least within their own area of expertise.  Misplacement also has a significant silver lining for lower-ranked journals: every time top journals screw up, their mistake allows students at a lower-ranked journal the opportunity, if they’re smart enough to grab it, to work on a high-quality, valuable article.  If placement corresponded perfectly to quality (something that doesn’t happen even in the peer-reviewed world), being an articles editor on the Maine Law Review or an environmental specialty journal would be much less rewarding than it currently is.

The condescension.  A last theme here is that the students actually running law reviews are incompetent.  In my experience, again, that claim is badly overstated.  Judging the relative merits of articles from many different legal sub-fields is a hard thing for second-year law students to do.  And the comments I receive from other professors are often more constructive--at least on matters of content--than those I receive from students.  But every article I've ever written has been improved by student review.  Sometimes the students' lack of knowledge is actually the key to those improvements; their edits help me identify places where a non-expert reader would be confused.  Usually the improvement comes just from having smart, motivated people thinking hard about every page and every footnote of the article.  And if my experience is at all typical--and I suspect it is--that justifies a little more respect for a lot of hardworking, and competent, students.

-Dave Owen



October 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

LSU Law Welcomes Hannah Wiseman as the Inaugural Liskow & Lewis Visiting Professor in Energy Law

Liskow and Lewis

The LSU Law Center is thrilled to be hosting one of our co-bloggers, Hannah Wiseman, Florida State University College of Law, as the inaugural Liskow and Lewis Visiting Professor in Energy Law. The lecture is part of a series of new initiatives of the newly created Laborde Energy Law Center at LSU. In addition to the lecture, Hannah will be visiting with students in a number of classes as well as teaching one class during her visit. We certainly look forward to Hannah's visit and hope you will attend if you are in the area! A description of the program is below:

Professor Hannah Jacobs Wiseman, a rising star in the field of energy law, will speak at the LSU Law Center on Thursday, October 10 as the inaugural lecturer in the Liskow & Lewis Visiting Professorship in Energy Law series.  The lecture, “Enhancing Sub-Federal Renewable and Fossil Energy Governance,” will take place at 5:00 p.m. in the David W. Robinson Courtroom at the Law Center.  This event is free and open to the public.  Please call 225-578-8645 to register.

The Liskow & Lewis Visiting Professorship in Energy Law provides funds to bring distinguished scholars in energy law and closely related fields to the LSU Law Center on an annual basis.  An Assistant Professor at the Florida State University College of Law, Professor Wiseman’s research focuses on the challenges of governing rapidly changing, multijurisdictional issues in energy, land use, and environmental law. She has written and spoken extensively about these challenges in the context of shale gas development and renewable energy.

Liskow & Lewis Visiting Professorship in Energy Law

Inaugural Lecture

Thursday, October 10, 2013

5:00-6:30 p.m.

  David W. Robinson Courtroom, Second Floor (New Building)

LSU Paul M. Hebert Law Center

1 East Campus Drive

Baton Rouge, LA

Registration: 225-578-8645

- Blake Hudson

October 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

The Blossoming of Environmental Law Workshops

I was lucky enough to find a job as a law professor a little over four years ago. From talking to more senior colleagues, this seems to mean that I have been around for the emergence of many new environmental law conferences, symposia, and workshops. For example, in a few short days I will be headed to Vermont for the 4th Annual Colloquium on Environmental Law. I was happy to be able to attend the first two and think that this is just a great gathering of folks in a pretty part of the country at the peak of its loveliness. I have spoken with a few people who thought this was a juniors-only event, which it assuredly is not. In fact, it is one the first places I actually got to meet some of my more senior colleagues from other schools whose work I had been reading for years.

This colloquium isn't the only thing going on in environmental law though.  Many folks tell me that they feel like there are more symposium than before and with increased use of calls for papers, more of an opportunity for  err... the less than famous among us.. to participate. What I find most exciting though -- because they tend to be the most enriching-- are the recent spate of junior works in progress events. Two years ago, I attending a junior-only WIP hosted by Amanda Leiter at American. It was really excellent and helped me with my project (well help me decide to shelve that project, which sometimes can be the most helpful advice). This past summer I attended one at University of Washington with all junior papers and a mixture of junior and senior commenters. It was also excellent. Plus I heard good things about the Sabin Colloquium for Junior Scholars at Columbia.  It is just an excess of riches. I am not sure what has caused this sudden burgeoning of programs but I gotta say that I like it!  Here is one more to add to your list: 




Lewis & Clark Law School invites submissions for its inaugural Junior Scholar Workshop to be held at Lewis & Clark Law School on Saturday, April 12, 2014. At the workshop, four junior scholars will present their works-in-progress before eight senior scholars. Each junior scholar will receive written feedback from at least two senior scholars. In addition, each junior scholar will have one hour to present and discuss her or his paper with the senior commentators and other workshop participants.

About the Workshop

The workshop aims to promote dialogue between law faculty interested in natural resources and administrative law topics. It also aims to provide junior faculty the opportunity to present their works-in-progress to experts who can offer constructive and thoughtful feedback in a collaborative environment.

The senior scholars who will participate in this workshop have a wealth of expertise in natural resources and administrative law. They are: Peter Appel (Georgia), Eric Biber (Berkeley), Michael Blumm (Lewis & Clark), Robert Glicksman (George Washington), John Nagle (Notre Dame), Mark Squillace (Colorado), Janice Weis (Lewis & Clark), and Sandra Zellmer (Nebraska).

Scholars are invited to submit papers related to natural resources and administrative law. Topics may focus on wildlife law, public lands law and use, protected areas, water law, and other associated topics, as well as administrative law.

Lewis & Clark Law School will pay hotel expenses for two nights. Junior scholars are also invited to attend Lewis & Clark’s symposium, The Wilderness Act at 50, which will take place on April 11, 2014, the day before the junior scholar workshop.

Paper Submission

For the purposes of this workshop, “junior scholars” include law professors with no more than 7 years’ teaching experience. Junior scholars who wish to participate in the workshop should submit papers that are 30-50 pages in length (double-spaced text using 12-point font, with single-spaced footnotes using 10-point font) and include an abstract of no more than 200 words. Scholars may submit papers that have been accepted for publication so long as the scholars can still revise the papers in response to workshop feedback.

Submissions are due by February 10, 2014. Please email all submissions and direct any questions to Melissa Powers, Submissions should include your name, institutional affiliation, telephone number, and email addresses. 

- Jessica Owley

October 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

Scoping Scholarship

Recently, law blogs (at least the few that I read) have been abuzz with discussion of the recent draft report of the ABA task force on "The Future of Legal Education."  That report has some less-than-flattering things to say about the motivations of law professors.  The resulting discussion often circles back to an old critique: that we write things that aren’t particularly useful for people in the non-academic world.  But academia’s independence also has fierce defenders.  They argue that if we commit ourselves to writing things of immediate value to practitioners, we’ll fail to consider systemic issues with our legal system and society, and instead will unwittingly become enablers of the status quo.  Implicit in both critiques is the premise that there is an inherent tension between academic and practitioner expectations for scholarship.  But I wonder if that tension really is so inherent, and I have a practical suggestion for avoiding, or at least reducing, it. 

The suggestion is straightforward: at the outset of any research project, we academics ought to spend some time discussing the project concept with practitioners (including non-lawyers) in the field we’re planning to write about.  I’ve done this with several of my research projects, and it’s been rewarding in several ways.  First, it lets me tap into practitioner knowledge, which is particularly helpful if, as is usually the case, there are practitioners who know a lot more about my subject than I initially do.  Second, and relatedly, it lets me know what questions practitioners are struggling with.  If I can help answer those, my work will be more useful to them.  Third, it alerts people in the field that I’m working on their area of interest.  Often they’ll follow up with me later if they hear about something relevant, and sometimes the initial contact has led to non-academic presentation opportunities, which then can open new discussion and feedback loops.

To people who argue that legal scholarship should be more useful to practitioners, that may sound good, but the proponents of academic independence might have a concern: wouldn’t these conversations tend to make scholarly work narrower and more anchored to the status quo?  To a small degree, the answer is yes; often ideas that sound appealing in the abstract suffer when they collide with day-to-day realities, and one result of these conversations usually is to compel qualification of whatever hypotheses I began with.  But that’s not a bad thing.  One purpose of scholarship is to get people to think or act differently, and that’s hard to do if they can easily dismiss you as naïve.   Also, I’ve found that the resulting changes usually are subtle.  Practitioners, in my experience, often want an academic perspective on the issues they work on.  They’re often excited when someone has time to compile a broader database that they would ever have time to collect themselves, to think systemically about issues they confront in piecemeal fashion, or to integrate their day-to-day experiences into broader theoretical frameworks.

Of course, this is not an original suggestion.  It’s something many academics already do, and it helps explain why, despite all the critiques, there is quite a lot of useful thinking in academic work.  This approach also doesn’t work for every project.  But I’d still suggest that for most projects, early outreach ought to be standard practice.  The relationships between academics and practitioners can be highly symbiotic, and talking at the outset of a research project is a good way to build that symbiosis.

- Dave Owen

October 1, 2013 | Permalink | Comments (0) | TrackBack (0)

Urban Agriculture Conference RFP

Going to Seed:  Urban Agriculture in Distressed Cities

The Law Review of the University of Detroit Mercy School of Law invites proposals for its 2014 Symposium, “Going to Seed:  Urban Agriculture in Distressed Cities,” scheduled for Friday, March 7, 2014.  This symposium will bring together both national scholars and local leaders to assess the role urban agriculture plays in the economic recovery of economically distressed cities such as Detroit, Cleveland, and Philadelphia.  Symposium organizers invite proposals for presentations and panels for the event.  Any topic related to urban agriculture will be considered; topics that dig into the ground-level details of current urban farming efforts in major American cities are especially welcome.  Relevant topic ideas could include regulatory issues such as zoning; permitting, water access, use, and discharge; chemical use and runoff, and developing physical and commercial infrastructure; as well as unique issues such as integrating agricultural animals into residential neighborhoods; food security and sustainability as a political, social, or theological priority; public and private liability for negligent or harmful agricultural practices; effects of urban agriculture on fundamental property law concepts, including, e.g., encroachment, boundary issues, nuisance, restrictive covenants, or eminent domain; as well as creative, outside-the-box topics that connect with urban agriculture and economic recovery in new ways.

Special Features:  Scholars whose proposals are accepted will be invited to join Symposium organizers for a tour of local urban agriculture projects. 

Deadline:  E-mail submissions of 500 words or less must be received no later than Monday, December 2, 2013, and should be directed to Ms. Gerta Rapo, Law Review Symposium Editor, University of Detroit Mercy School of Law / Law Review, at  Accepted proposals will be considered as possible publication topics for a special symposium edition of the UDM Law Review; editorial staff will follow up with selected speakers regarding the details and deadlines for publication.

Additional Info: Questions regarding the Symposium or the proposal process should be directed to Law Review Symposium Editor Ms. Gerta Rapo,, University of Detroit Mercy School of Law / Law Review, 651 E. Jefferson Ave., Detroit, MI 48226 (ph. 313-492-6318). 

October 1, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

Chaired Position in Law, Constitution and Society, University of Missouri-Kansas City School of Law

The University of Missouri - Kansas City (UMKC) School of Law is seeking nominations and applications for the Edward A. Smith/Missouri Chair in Law, the Constitution and Society.  The School is especially interested in applicants with strong backgrounds in Environmental Law, State and Local Government Law, Urban Law, or Property Law.   It is expected that the holder of the Chair will make significant contributions to student learning and scholarship, and will be an active leader in bringing creative solutions to the legal and social problems of the wider community.  The Chair was established in honor of Edward A. Smith, whose distinguished career exemplified the use of law as a tool for shaping a better society.  

 The School of Law was founded more than 100 years ago and is located in the beautiful Country Club Plaza area of Kansas City, a diverse metropolitan area of more than 2.3 million people.  The School provides its approximately 500 students with a comprehensive, affordable legal education supported by a collaborative and dedicated faculty, uses a personalized admissions process, and enjoys strong community and alumni support.  The School is housed in a technologically sophisticated building on a landscaped and vibrant campus.  The UMKC School of Law is the only law school in Kansas City, and is one of two law schools in the University of Missouri system.

Nominations and questions may be directed to Professor Doug Linder,, (816)235-2375.  To apply, please submit an application through

 Applicants should submit a cover letter, CV, and other materials the applicant wishes to be considered, before October 15, 2013.  Applicants who are not U. S. citizens must state their current visa and residency status.

The University of Missouri-Kansas City recognizes that a diverse faculty, staff, and student body enriches the educational experiences of the entire campus and the greater community.  To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and to making every attempt to support their academic, professional and personal success.

The University of Missouri-Kansas City is an Affirmative Action, Equal Opportunity Employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.

--Deepa Badrinarayana

September 26, 2013 | Permalink | TrackBack (0)

Wednesday, September 25, 2013

Waiting for the Stormwater Rule

Storm drainLast week, E&E News reported a breakdown in talks over EPA’s long-delayed stormwater rule.  In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012.  That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a new timeline.

The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system.  There are several key reasons for those challenges. 

First, urban stormwater problems generally arise from the combined runoff of very large numbers of properties.  That makes an individual permitting approach, which has been quite successful for discharges of industrial and wastewater treatment plant effluent, hard to use; writing permits for millions of landowners probably isn’t administratively or politically feasible.  Urban stormwater therefore requires alternative regulatory structures, but coming up with effective ones hasn’t been easy.   

Second, stormwater raises some interesting federalism issues.  Many of the most promising solutions involve land use planning, and regulation of land use has long been the third rail of environmental law (I’ve argued elsewhere that it shouldn’t be, and that federal law can be a positive influence on local land use decision-making, but the political realities remain challenging).  The Clean Water Act and EPA’s existing regulations dance around that challenge, at least to some extent, by requiring medium and large municipal stormwater systems—known in CWA parlance as MS4s—to serve as the National Pollutant Discharge Elimination System (NPDES) permit holders for the systems they manage.  That obligation creates a semi-cooperative federalism scheme, in which municipalities must regulate the private and public properties that discharge into their systems.  But in my conversations with municipal stormwater managers, I’ve heard a lot of frustration with that system.  They generally feel that their obligations are ambiguous; that it’s unfair for them to bear those obligations while less developed areas remain outside the permitting program; and that, even if the obligations were more clearly defined, they just don’t have the money to put a more robust regulatory program into effect.

As that last complaint suggests, lurking behind all these challenges are cost issues.  Those issues don’t apply to all stormwater regulation. In fact, minimizing stormwater impacts in an undeveloped watershed actually can be quite cost-effective, even if one ignores the harder-to-value environmental benefits that cost-benefit analysis often excludes.  Many of the best fixes involve integrating vegetated spaces into landscaping and consolidating development—in other words, doing many of the things that smart growth advocates have promoted for a variety of other sensible reasons.  Consequently, a stormwater-sensitive development can actually be a very nice place to live or work.  But compelling that sort of development would push EPA further into the realm of land use planning, where, for issues related to politics and federalism, it may be reluctant to go.  Instead, the Clean Water Act’s regulatory structure focuses on waterways that already are impaired and on landscapes that already are developed.  There are obvious benefits to that approach: among others, developed watersheds typically have more people, less anti-regulatory politics, and higher-value real estate, which means more of a constituency for watershed restoration and more money to support it.  But it also means focusing on some of the most expensive fixes.

This all leaves EPA in a bind.  In its settlement, it made the following commitments (in addition to many others not directly related to the stormwater rulemaking):

By September 30, 2011, EPA will propose a regulation under section 402(p) of the Clean Water Act to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites.  As part of that rulemaking, EPA will also propose revisions to its stormwater regulations under the Clean Water Act to more effectively achieve the objectives of the Chesapeake Bay TMDL.  In developing the proposed rule, EPA will consider the following elements related to stormwater discharges both nationally and in the Bay watershed: (1) additional requirements to address stormwater from newly developed and redeveloped sites; (2) requiring development and implementation plans by MS4s to reduce loads from existing stormwater discharges; and (3) explanding the definition of regulated MS4s.  EPA will take final action by November 19, 2012.

That all sounds sensible, and many stormwater managers would agree that these are important next steps.  But they also involve ratcheting up pressure on municipalities and extending EPA further into the role of regulating new development.  Neither step, at present, is an easy sell.

Nevertheless, in this arena, as in many regulatory arenas, there are promising innovations that might alleviate a bit of the difficulty.  One example comes from the city where I teach.  Portland, Maine is currently in the process of developing a stormwater fee program.  The fees will be pro-rated to the amount of impervious cover owned by each landowner, with reductions available to landowners who take steps to reduce the impacts of their stormwater runoff.  In the short term, that funding will provide city managers with a pool of money they can use to address combined sewer overflows and other major stormwater challenges.  It also will generate that money equitably, with people and entities who contribute a larger share of the problem contributing more to the solution, but with everyone—small landowners included—chipping in.  In the long term, the city hopes that the persistent pressure of an economic signal can change the ways people develop, redevelop, and manage their land.  If it works, the program could demonstrate that urban stormwater is a more tractable problem than people have traditionally thought, and that the increased regulatory controls that EPA may yet seek actually can be implemented in ways that are equitable, efficient, and, ultimately, successful.

Portland’s story also highlights a potential role for those of us who teach environmental subjects, including law.  According to the municipal staff I’ve talked to (in Portland and other surrounding cities), one of the biggest challenges of local stormwater regulation is education.  They may care quite deeply about environmental quality, but most people just don’t understand urban hydrology, stormwater pollution, or stormwater law, and they’re often baffled by proposed regulatory responses.  For a city implementing a stormwater fee program, one of the largest challenges is public education.  But teachers can help.  I suspect urban stormwater occupies a minor place in most environmental law syllabi, and studying the ecology of urban environments has not been ecologists’ traditional focus.  But if we spend even a little more time teaching about urban water quality, we’ll educate our students about a very important public policy issue—and an issue to which many people, both in and outside of the legal field, devote many hours, billable or otherwise, every day.

- Dave Owen


September 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

Call for Applications: University of Hawaii Law, Director of Environmental Law Program

You can see the full application description here.

And here is a summary of the position duties and responsibilities:

The successful candidate will be a full time member of the tenured or tenure track faculty and will direct the Law School’s Environmental Law Program. His or her primary teaching, scholarship, and service responsibilities will center on the areas of environmental and administrative law. As Director of the Environmental Law Program, the successful candidate will oversee the Law School’s certificate program in Environmental Law, and develop and manage the Program’s curricular and extra-curricular initiatives relating to environmental law and policy. Environmental law is conceived broadly to include natural resources law, wildlife law, environmental law, land use law, and other subjects bearing on environmental sustainability at the local, regional, national, and international levels.

- Blake Hudson

September 23, 2013 | Permalink | TrackBack (0)

Tuesday, September 17, 2013

Greetings and Welcome!

Many thanks to Blake Hudson for inviting me to join the Environmental Law Profs blogging crew for the next few months. As many of you already know 2 or 3 of you may know, I blog regularly (err... lately maybe irregularly is the better term) over at Land Use Profs. I love the land use gang, but often feel like a bit of interloper because of my lack of land use cred. I plan to continue my blogging there but hope to use this forum to discuss intriguing issues that don't fall as squarely into the land use box.

I'd like to take this chance in my first post, however, to welcome all the new environmental law professors joining our ranks this year. Last year, Kalyani Robbins worked with a research assistant to gather information about environmental law professors across the United States. While Kalyani and I never quite got around to writing the article that we planned regarding the results, one remarkable thing was clear -- there are a lot more environmental law professors out there than people realize. Moreover, there is a big category of untenured folk. The research identified 510 environmental law professors, with 101 untentured tenure-track faculty. This number does not include those junior scholars out there who have not yet entered the tenure track, like folks currently on the market, people working as VAPs, fellows, etc. One of the things we realized during our research and discussions into these issues, is that many of these junior scholars toil away in solitude -- not always having funding to travel to conferences or having good guidance about making connections and finding colleagues. 

In an attempt to at least create some virtual connections, a few of us created a listserv for junior environmental law and land use scholars (plus we have some property and indian law folk chiming in periodically). This smallish community can serve as a good sounding board for silly questions, arranging meet ups at conferences, and getting to know each other. It is not a replacement in any way of the superior (and much larger) listserv managed by John Bonine (if you are an environmental law scholar and not on that listserv, you should get on it -- email John). I think I was teaching for a year before I even knew about that listserv...

Anyhoo.... at the beginning of this new school year, I would like to invite junior faculty (and faculty hopefuls) to join our list by dropping me a line ( If you have a junior environmental law person at your school,  take a minute to point them to these listservs (and this blog! I think I was teaching for a year before I even knew about John Bonine's listserv.

For those of you with tenure, consider volunteering to read a junior paper or two each year. To facilitate these paper exchanges (which we run through the listserv), simply fill out this survey.


Jessie Owley


September 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Getting to 3.2% in Fracking

The New York Times today reported potentially encouraging news from a collaborative study out of the University of Texas:  methane leakage rates from hydraulically fractured shale gas wells might be lower than previously estimated EPA rates.  The study emerged from a combined effort of gas companies, the Environmental Defense Fund, an independent Scientific Advisory Panel, and academics.  It finds that methane emissions from the flowback process--when hydraulic fracturing fluid and some gas (methane) flows back out of the well--range from 0.1 Mg to 17 Mg (with a mean of 1.7 Mg of methane released and "75% confidence bounds of 0.67-3.3 Mg"), as compared to previous EPA estimates of an average of 81 Mg per flowback event.  Emissions from pumps and other equipment at well sites, on the other hand, are "comparable to and higher than" EPA estimates.  In total, methane emissions from activities at the wellhead might represent "0.42% of gross gas production."  These findings are important because organizations like EDF believe that methane leakage rates from the rapidly-growing shale gas resource must be 3.2% or lower for gas to provide a climate advantage over new coal-fired power plants. 

But we are not out of the weeds yet.  This EDF, university, and industry-led study is only one of approximately 16 studies planned to be published in academic journals by 2014, and the study only addresses leakage at the wellhead.  The amount of methane leakage through the entire natural gas system, from production to "gathering & processing, long distance transmission & storage, local distribution, and transportation," is still a murky number.

In addition to lacking definitive evidence that system-wide methane leakage is below 3.2%, we also must understand the limitations of the wellhead study.  The study makes excellent progress within the methane leakage debate because it measures actual leakage rates from "150 production sites, 27 well completion flowbacks, 9 well unloadings, and 4 workovers," including 489 hydraulically fractured wells in several regions.   But as with any study that must rely on industry cooperation to access data, there is a concern that the researchers measured industry best practices.  It is possible, in other words, that the industry actors most willing to participate in the study were those that already used the best methane capture technology and practices and were least worried about the results.  Indeed, the study notes that the "dataset is designed to be representative of the participating companies' activities and practices, but not necessarily all activities and practices."

It is not yet clear that the EPA-estimated 25,000 wells fractured or refractured each year use methane capture practices as beneficial as the 489 hydraulically fractured wells in the study.  The authors of the Texas-led study indicate that "[m]ultiple methods were used to minimize the potential for bias in the sample set," and they provide a detailed appendix of the study scope and method.  The appendix indicates that "[r]epresentative sampling was believed to be achieved by: [s]electing a large number of companies, [s]electing a range of geographic areas to sample," and "[s]electing [a] minimum number of sampling targets in each area." But the appendix shows that the nine mid-size and large companies that participated in the study "account for almost 12% of all U.S. gas wells," "16% of gross gas production," and "almost half of the new well completions." Although this represents a sizeable chunk of industry, it might also represent the most cooperative and progressive chunk.   There is some indication that not all companies are amenable to the types of methane capture practices used by these companies.  The American Petroleum Institute has complained about the costs of new EPA Clean Air Act rules that will require methane capture or flaring (burning off of gas) similar to the practices used at the 489 wells studied by the University of Texas team.  It worries that the "reduced emissions completion" (REC) technologies necessary to achieve this capture rate will not be available in the numbers needed and will slow down drilling and fracturing. 

We also need to think about the broader climate impacts of gas, as noted by Patrick Parenteau & Abigail Barnes and others. Although we know that the displacement of coal with gas has benefits far beyond (apparent) greenhouse gas reductions, there is the broader threat of what the Natural Resources Defense Council calls a "fossil fuel lock-in" (link is to video archives of a National Research Council presentation by Kate Sinding of NRDC).  The existence of abundant, cheap natural gas threatens to distract us from implementing energy efficiency and renewable energy projects at a rapid rate.  MIT researchers have noted that the focus on gas slows down and in some cases stops innovation in areas like carbon capture and sequestration, and the International Energy Agency reminds us that gas is not enough to meet climate goals like stabilizing global temperature rise to 2 degrees Celsius.  To make real progress on climate issues, we must rapidly invest in fossil fuel alternatives while continuing to achieve systemwide reductions in methane leakage from gas operations.  

-Hannah Wiseman

September 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Welcoming Guest Blogger Jessica Owley

It is our pleasure to welcome Jessie Owley as a guest editor on Environmental Law Prof Blog. 1346279906662
Below is a snippet from her faculty page. Welcome Jessie! 

Jessica Owley teaches environmental law, property and land conservation. She joined the SUNY Buffalo Law in 2010 after serving as an assistant professor at Pace Law School. She received her Ph.D. in environmental science, policy and management from the University of California-Berkeley in 2005, shortly after completing her J.D. at Berkeley Law in 2004.

Before entering academia, Owley practiced in the Land Use and Environment Law group at Morrison & Foerster in San Francisco. Prior to private practice, Owley clerked for Hon. Harry Pregerson of the Ninth Circuit Court of Appeals and Hon. Dean D. Pregerson of the Central District of California. Owley is a member of the California bar and admitted to practice in the Northern, Southern and Eastern districts of California and the Ninth Circuit.

Owley's teaching interests are in the areas of property, environmental law, administrative law and Indian law. Though her general research is on land conservation and property rights, her current scholarship focuses on using property tools for conservation in the context of climate change.

- Blake Hudson

September 12, 2013 | Permalink | TrackBack (0)

Wednesday, September 11, 2013

University of Montana School of Law Tenure-Track Position in Property Law

From the University:

The University of Montana School of Law invites applications for tenure-track Assistant or Associate Professor of Law position teaching Property Law.  The position is a ten-month contract beginning fall semester 2014.  To view full job descriptions, minimum requirements needed, and to apply, go to Preference.

- Blake Hudson

September 11, 2013 | Permalink | TrackBack (0)

GHG Trading and Co-Pollutants: Expanding the Focus

I agree with Dave Owen’s recent post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities.  He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots.  Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.

I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels.  Even if a GHG trading program would not cause an industrial hotspot – would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.

I start by acknowledging Adelman’s valuable insights about industry’s relative role in air toxics pollution.  Because Adelman’s concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry’s absolute and relative contribution to air toxics pollution.  He defines a county-wide industrial hotspot by industry’s absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million.  He defines a census tract industrial hotspot where industry’s absolute contribution to cancer risk exceeds 20 per million and industry’s relative contribution is at least 30% of total air toxics emissions.  Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics.  Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions.  But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.)

Adelman demonstrates that the paucity of industrial toxic hotspots has important implications for GHG trading programs.  First, because mobile and nonpoint sources dominate air toxics pollution in most of the country, GHG trading is unlikely to cause large percentage shifts in communities’ exposure to air toxics.  As Adelman notes (and Dave Owen’s recent blog post highlighted), if industry contributes 10 percent of a locality’s toxic emissions and a GHG emissions program requires a 20 percent emissions reduction, then imposing that reduction requirement directly on the local industries would garner only a 2 percent reduction in toxic emissions.  Thus, a GHG trading program that lets facilities purchase allowances instead of reducing emissions would forego only a 2 percent reduction in local toxic emissions.

A second valuable insight about industry’s limited relative role is that, in most instances, GHG trading is unlikely to increase racial inequities in air toxics exposure. That stems, in part, from industry’s relatively minor contribution to cumulative air toxic risks.  Because trading is unlikely to substantially affect relative levels of air toxics cancer risks, it is unlikely to substantially shift the racial distribution of exposures.  And in the small number of census tracts where industrial emissions do play a substantial role in air toxics risks, he observes that the racial disparities are slight, so that a GHG trading program’s emissions patterns would not lead to increased racial inequities in risk distribution.

Adelman’s analysis addresses key environmental justice concerns about distributional equity.  The analysis does not, however, address one additional issue that is also important to the debate about GHG trading program’s and toxic hotspots: the significance of co-pollutant reductions on absolute pollution levels, even if industrial emissions are not the dominant source of emissions and the trading program would not lead to large percentage shifts in air toxics levels. In other words, one additional issue to consider is the importance of any reductions – even small reductions – in severely polluted areas. In highly polluted areas, the concern is not just whether trading will cause hotspots, but whether trading will eliminate opportunities to achieve incremental reductions in serious cumulative harms.

To identify areas where GHG trading could potentially make a significant difference in toxic emissions and, therefore, affect the relative distribution of pollution, Adelman rightly focuses on industrial hotspots: the counties and census tracts where industrial emissions most affect air toxics levels.  As he notes, however, the focus on industrial hotspots does not correspond to toxic hotspots more broadly, since the nation’s most toxic hotspots are primarily caused by mobile and nonpoint sources, not industrial sources.   He observes that, because “large populations and high population densities” generate high air toxics emissions from mobile and nonpoint sources, they “all but foreclose the emergence of industrial hotspots in metropolitan areas where the cancer risks from air toxics are typically the highest.” (322)  Industrial hotspots typically appear only in places that combine highly toxic industries (generating significant industrial emissions) with small, low density, populations that generate relatively few mobile and small point source emissions. 

Therefore, although assessing a GHG trading program’s impacts on industrial hotspots tells us where a GHG trading program covering industrial sources could have the biggest percentage impact on air toxics emissions, that analysis does not address a trading program’s impacts on areas experiencing the highest levels of air toxics pollution.  To assess the value of achieving co-pollutant reductions, it is important to consider not only the percentage reductions that could be achieved or the distributional equity implications of those reductions, but also the importance of achieving reductions in absolute levels of pollution.

To see this more clearly, imagine two census tracts.  Tract 1 is in a rural, low-density, region.  A steel mill there poses a cancer risk of 20 per million and contributes 50 percent of the census tract’s overall air toxics risk of 40 per million.  Under Adelman’s analysis, Tract 1 would qualify as an industrial hotspot because industrial sources pose a risk of at least 20 per million and industrial sources contribute more than 30 percent of the tract’s overall air toxics risk.  If a GHG reduction program required a 20 percent decrease in emissions, and facilities in that area chose to purchase allowances rather than reduce emissions, then that area would forego reducing cancer risks by 4 per million, forgoing a 10 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 10 percent reduction is calculated as follows: A 20 percent reduction of the 20 per million cancer risk would lead to a reduction in risk of 4 per million.  Reducing Tract 1’s air toxics risk from 40 per million to 36 per million is a 10 percent overall reduction in risk.  Note that, for purposes of explanation, this example is highly simplified and likely exaggerated; it assumes that a facility would purchase allowances rather than reduce emissions and that GHG and co-pollutant emissions are perfectly correlated.)

In contrast, assume Tract 2 is in a dense urban environment that more closely resembles Los Angeles than Tract 1’s rural character.  Assume several industries pose a cancer risk of 10 per million and contribute 10 percent of the census tract’s overall air toxic risk of 100 per million; the other 90 percent of the air toxics risk stems from mobile and nonpoint sources. Tract 2 would not qualify as an “industrial hotspot” under Adelman’s definition because industry contributes less than 20 per million to the overall cancer risk and because industry contributes less than 30 percent to the tract’s overall risk level.  Assuming a twenty percent GHG reduction requirement in Tract 2, and assuming that local industries purchased allowances rather than reducing emissions, Tract 2 would forego reducing cancer risks by 2 per million, foregoing a 2 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 2 percent reduction is calculated as follows: A 20 percent reduction of the 10 per million cancer risk could reduce air toxic risks by 2 per million.  Reducing Tract 2’s air toxics risk from 100 per million to 98 per million is a 2 percent overall reduction in risk.)

Adelman’s analysis of industrial hotspots helps us see that a GHG trading program could make the most relative difference in associated air toxics emissions in Tract 1 because there it could cause Tract 1 to forego a 10 percent emissions reduction, whereas in Tract 2, where industrial emissions are a smaller component of overall emissions, the trading program would cause Tract 2 to forego only a 2 percent reduction.  In Tract 1, there is a greater possibility that the foregone reductions could change that tract’s degree of air toxics pollution relative to other areas, and cause racial inequities to the degree Tract 1 is located in a disproportionately minority area.

These insights address key equity questions, as measured by relative pollution levels.  But a trading program’s role in alleviating absolute pollution levels, not just its impact on relative pollution levels, is also relevant to the discussion of GHG trading and hotspots. The cumulative toxics risk in Tract 2 is 100 per million, substantially more than the 40 per million in Tract 1.  Of course, reductions in both tracts are important, but the 2 percent reduction in Tract 2 could be as or more important than the 10 percent reduction in Tract 1.  Though the smaller percentage reduction in Tract 2 will not strongly affect relative pollution levels and is unlikely to change distributional equity, the reduction could be more important to the impacted communities in Tract 2 than in Tract 1.  The difference in Tract 2 (reducing the cancer risk from 100 to 98 per million) might be less dramatic than in Tract 1 (reducing the cancer risk from 40 to 36 per million), but arguably the need for reductions is greater in Tract 2 than in Tract 1.

Wherever harm is caused by cumulative sources, incremental reductions from any one source, particularly a smaller source, will not lead to substantial changes in overall emissions. But one factor in considering the importance of the reduction is the extent of the need for the reduction, not only the relative change in emissions or its impact on distributional equity.  Residents subject to multiple sources of pollution hope for reductions from all sources, even if the reductions achieved by any one source cannot, by definition, solve the entire problem.  The presence of high emissions from mobile and nonpoint sources should not minimize the value of industrial emission reductions in the most seriously polluted areas.

A focus on the impacts of trading on industrial hotspots provides important insights that contribute substantially to the debate about GHG trading and hotspots, but its limits in fully resolving that debate are revealed by the article’s suggested regulatory fix.  In order to mitigate the risk that a GHG trading program could lead to significant shifts in relative pollution in the limited numbers of industrial hotspots he has identified (most of which are rural, low-density communities where a single industry causes most of the air toxics pollution), he identifies modifications to a cap-and-trade program to reduce the risk of adverse shifts in emissions.  His suggested solution addresses the role of a GHG trading program in causing industrial hotspots.  But it does not address the impact of trading on toxic hotspots that are not primarily caused by industry.  If we are going to modify a GHG emissions trading program to address co-pollutant consequences, should that effort be focused on these areas, rather than the areas experiencing more intense air toxics pollution?  True, protections in industrial hotspots are likely to have a greater relative impact on pollution than they would in areas suffering from many sources of pollution.  But it’s not clear that this approach would target improvement where it’s most needed.

To be clear: I am not suggesting that a GHG trading program or carbon tax should not be adopted because of its co-pollutant drawbacks relative to more direct regulatory measures.  This dialogue concerns only the distributional impact of GHG trading on co-pollutants.  As I have written elsewhere, a full analysis of a trading program’s co-pollutant implications must also consider other dimensions to the choice between market-based and traditional regulation, including relative stringency, relative flexibility, enforceability, participatory opportunities, and other factors, some of which might (or might not) provide counterveiling co-pollutant benefits.  In addition, other benefits of a GHG trading program or carbon tax could potentially outweigh the co-pollutant considerations articulated here.  And, if politically viable (a big “if”), more aggressive efforts to reduce mobile and nonpoint air toxics could be more effective than attempting to achieve co-pollutant reductions through a GHG trading program, particularly if that effort were to adversely impact the viability of GHG control efforts.  I write, instead, simply to add another dimension to the discrete debate about GHG trading and air toxic hotspots: a trading program’s impact on cumulative pollution in the nation’s most polluted areas.

- Alice Kaswan

September 11, 2013 | Permalink | Comments (0) | TrackBack (0)