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
  • ABA SEER 2016 Endangered Species Writing Competition (more information at
  • The ELI/Beveridge & Diamond Constitutional Environmental Law Writing Competition (more information at

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 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)

Thursday, December 10, 2015

Hage v. United States Lives on, 24 Years Later


Although Cliven Bundy has gained some recent fame for resisting the BLM’s efforts to bring him into compliance with his federal grazing permits, he was a flash in the pan compared to the Hage family, whose 24-year litigation siege continues to stymie the Department of Justice.     Although it is barely possible to put this 24-year history in a nutshell version, the essence of it is E. Wayne Hage and his children’s belief that Interior’s partial cancellation, and eventual revocation, of their grazing permits in the early 1990s violated their constitutional and statutory rights.  Several of these cases have been resolved, but two live on… and on, and on:  Hage v. United States (U.S. Court of Federal Claims) and United States v. Estate of E. Wayne Hage (9th Cir.).

In the former case, the Hages alleged that the Forest Service’s partial cancellations of E. Wayne Hage’s grazing permits in 1991 effected a taking of their fee simple rights in several ditches and water rights located on the Forest Service grazing allotments historically used by their ranch.  E. Wayne and Jean Hage bought the Pine Creek Ranch in 1978, which consists of 7,000 acres of private land, serving as base property for 752,000 acres of grazing allotments located nearby.  The Hages first started grazing these six allotments (managed by BLM and the Forest Service) pursuant to federal permits in 1978.  In the early years, the Hages and the agencies had an uneventful relationship.  In the late 1980s, however, the Hages started to resist Forest Service management actions that they deemed to be in conflict with their “rights” to graze the allotments at levels they, rather than the Forest Service, deemed appropriate.   This resulted in the Forest Service enforcing permit violations by lowering authorized stocking levels on two of the allotments in 1990 – one by 25% for repeated violations of prior permit terms, and one by 38% for trespass. Forest Service later impounded Hages’ cattle after they refused to remove enough to comply with the reductions.

Things heated up in 1991, when E. Wayne Hage and a friend were criminally convicted of removing trees on one allotment, which conviction was later overturned by the Ninth Circuit. That same year, the Hages filed the predecessor action to Hage v. United States, alleging physical and regulatory takings of their ranch, cattle, “forage rights”, water rights, and ditch rights.  In addition, they argued that grazing permits were bilateral contracts, and reduction or cancellation of the permits constituted an enforceable breach.  In a series of decisions (8 in total), the Court of Claims repeatedly held that cancellation or reduction of the permitted stocking levels did not constitute takings, but struggled with the factual issues related to the water rights, finally holding that the Forest Service’s denial of the Hages’ requests for access to their ditches and water rights constituted a taking.  In 2010, the district court awarded Wayne N. Hage (now pursuing the family litigation after his father had passed away in 1996) and the Hage Estate approximately $14,000 in damages.  The federal defendants appealed, and Hage cross-appealed.  Over the ensuing five years, the case again bounced back and forth from the district court to the Court of Claims, with the federal defendants seeking reversal of the takings ruling and Hage seeking to reopen the merits of “unresolved liability theories” yet to be tested. The Court of Claims eventually reversed the district court on the takings and damage assessment in 2012.  Yet, Hage filed a motion to reopen the case, and so it continues…Currently, the parties are battling over whether the case is closed, with Hage arguing that he did not receive notice of his right to appeal the last district court ruling.  On December 2, the court agreed, granting Hage leave to file an appeal to the Federal Circuit, which will hear the case in 2016.   

The Ninth Circuit appeal arises out of a trespass enforcement action by the Department of Interior, which Wayne N. Hage defended using a theory of vested grazing rights predating the passage of the Taylor Grazing Act in 1934.  Essentially, he argued that the Pine Creek Ranch had acquired grazing rights under territorial law and the Treaty of Ruby Valley.  The federal district court ruled against Hage on those arguments, but, in a novel 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 facts in this case centered around Hage’s application for a new grazing permit in 1993, after the criminal case and the takings case had been filed.  Despite this tension, the BLM was willing to allow Hage to renew his BLM permits.  Hage filled out the permit application form, but next to his signature, wrote “without prejudice-UCC 1-207.”   The BLM denied the permit because of the UCC language, uncertain that Hage was fully accepting the terms and conditions of the proffered permits.  Despite the fact that he lacked permits, Hage continued to graze the BLM allotments, resulting in the trespass violations which eventually gave rise to the enforcement action. 

Ultimately, at the conclusion of a 103-page decision that essentially rewrote federal grazing law, Judge Jones held that the federal government had violated Hage’s due process rights “through a series of actions designed to strip the Estate of its grazing permits… for reasons unrelated to the appropriate use of the range or ensuring that historical grazing use is respected.”  United States v. Estate of Hage, No. 2:07-CV-01154-RCJ, p. 41 (D. Nev. May 24, 2013).  Apparently, the court viewed the federal actions (such as failing to issue the BLM permits because of the UCC annotation, and failing to entertain any further grazing applications after the trespasses occurred) as a sort of conspiracy designed to deprive Hage of his “rights” to graze, going so far as to say that the federal actions “shock[ed] the conscience of the court.”  Id. at 42.  Furthermore, the court recognized a “forage right” to graze within one-half mile on either side of a vested water or ditch right, granting Hage a one-mile easement alongside each of his ditches and around each of his springs and wells, for his cattle to drink and “wander,” without a federal grazing permit.

These rulings were remarkable for several reasons, primarily because federal courts have refused to recognize any property right in a grazing preference, a grazing permit, or any associated aspect of public lands grazing, for over one hundred years.  The United States Supreme Court has issued no less than five opinions declining to recognize property rights in permits, preferences, or in the public lands grazed pursuant to federal permits.  Moreover, this decision reverses the statutory presumptions, in the Taylor Grazing Act, National Forest Management Act, Multiple-Use and Sustained Yield Act, and the Federal Lands Policy and Management Act, and recognized by the federal courts in every circuit, that the Forest Service and the BLM possess the right to modify, cancel, or decline to renew grazing permits for a broad variety of reasons – not just related to the permittee’s behavior (although violations of permit conditions certainly constitute grounds for suspension, cancellation, or modification of a permit’s terms), but in light of other management concerns, such as a modification to the management plan, or because of drought, competing uses, or other reasons. This decision flips that model on its head – declaring that the agency has the burden to prove that the permit should be modified, cancelled, or suspended, and once it has satisfied that burden, changes may only be made for reasons related to the permittee and his “historical use” of the allotments.  Finally, this decision deviates markedly from the line of federal cases recognizing the Forest Service and BLM’s statutory authority to impose reasonable conditions on access to private inholdings – in this case water and ditch rights.  Every other court that has considered this issue has ruled that the federal agencies can restrict, bar, or otherwise condition a right of access based on the private inholder’s past conduct, or for reasons unrelated to that inholding (depending on the protected status of the surrounding federal land).  This decision intimates that anyone possessing a private inholding has an absolute right to access an inheld water or ditch right, which cannot be regulated by the federal agency, and expands that right to include the one-half mile “buffer zone” on all sides.

The Department of Interior has appealed this decision to the Ninth Circuit, which hears oral argument from the parties today.  A decision is expected on this appeal in 2016 as well.

 - Hillary Hoffmann

Guest blogger Hillary Hoffmann teaches grazing law, among other subjects, at Vermont Law School.

December 10, 2015 | Permalink | Comments (1)

Monday, November 30, 2015

The Fisheries Outlier? A Research Paper Idea

FishermanIn environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990.  In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law.  Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

Dave Owen

image from

November 30, 2015 | Permalink | Comments (0)

Friday, November 20, 2015

Arizona State University is Sustaining its Sustainability Law Conference...

... and it wants you to come.  I've heard good things about last year's conference, and the financial deal--lodging, meals, and up to $500 paid for travel--will make your dean happy.  The organizers are looking for both individual and panel proposals, and the portal for submitting proposals is here.

ASU is also soliciting submissions for its Morrison Prize, which goes to the most influential piece of sustainability-related scholarship from the previous year.  The winner gets $10,000 and will be the keynote speaker at the sustainability conference.  You can find more details here, and move quickly; the deadline for submissions is Monday, November 30.

November 20, 2015 | Permalink | Comments (0)

Tuesday, November 10, 2015

A Law Review Submissions Idea

The law review submissions process is a perennial gripe for professors and students alike (for some recent discussion, see this thread from Prawfsblawg).  But I wonder if a relatively simple reform might make it better.

Imagine if every law professor were limited, somehow, to fifteen submissions per article.  What might the consequences be?  I can imagine a few positive and some negative.  And while it’s difficult to predict all the ripple effects, I suspect the positive effects would outweigh the negatives.

The main positive benefits would flow from articles editors having fewer articles to read.  Right now, many authors blanket the field with submissions.  There are few reasons not to; Expresso and Scholastica make it so easy.  But that means many journals are inundated with submissions and have no choice but to triage their workloads.  So they do, and in ways that aren’t fair to professors or good for quality scholarship: using letterhead and past publication records as proxies for quality, for example, and making snap judgments based on tiny portions of articles.  The process has costs for students, too.  I suspect most articles editors would prefer to read a little bit less and a little more deeply.  This system might allow them to do that.  And, of course, it might reduce the number of articles that student editors do read carefully, make considered judgments upon, and offer to publish, only to see their offer used as leverage for another placement.

A secondary positive benefit might be increased alignment between the interests of student editors and the articles they receive.  This could happen in multiple ways.  First, imagine that the 2017-18 board of the Hastings Law Journal is particularly interested in environmental law.  It could advertise that interest, and professors would be particularly likely to prioritize Hastings for their environmental law submissions.  Students then might get more articles in subject areas that interest them—and subject areas in which they are more comfortable evaluating quality.  The same benefit ought to accrue to specialty journals.  Professors would probably make more effort to target journals that seem like natural fits for their articles, and specialty journals obviously would fit that description.  And again, I think that would benefit both students and the academy, for it would ensure that a greater proportion of articles is selected and edited by students with heightened expertise in the areas those articles cover.

There are also some obvious potential negative effects.  Submission limits might reify the soft caste system that currently plagues the submission process; they would probably make it harder for an underdog, unknown author to use expedites to climb the ladder (though they might also make her less dependent on expedites to get an initial read at a top journal).  And there’s also the problem of the author who writes something pretty good but just miscalculates when selecting journals to target.  Missing out on publication seems like a harsh penalty for what might be a completely understandable mistake. 

And then, of course, there’s the enforcement problem.  Putting this system in place would be a bit like, say, trying to limit the ability of federal judges to make hiring decisions before a certain date.  The incentive to cheat would be huge, and penalizing cheating would be rather difficult (who would the enforcers be?).  And that assumes that everyone would agree to this system in the first place.  Even if most journals are interested, the holdout and coordination problems are daunting.  But perhaps, if the basic idea is sound, those obstacles might be surmountable—and if the basic idea isn’t sound, those obstacles are moot.  So I’m curious what readers think.  Is there any potential benefit here?

- Dave Owen

November 10, 2015 | Permalink | Comments (1)

Tuesday, November 3, 2015

The Unravelling Ideology of Environmental Trading Systems

This morning, the Obama Administration released a memorandum on compensatory mitigation.  The memorandum does several key things.  First, it makes the avoid-minimize-compensate hierarchy, long a cornerstone of Clean Water Act section 404 implementation, into a guiding principle across much of federal environmental governance.  Second, it strengthens the federal commitment to use, and support, compensatory mitigation, including private sector initiatives.  And third, it directs agencies to link compensatory mitigation to landscape-scale planning efforts.  None of these ideas is new—in specific realms like renewable energy siting, federal agencies were already trying to do these sorts of things—but the memorandum tries to turn individual efforts into consistent and cohesive policy.

All of that is important, but this post is going to wallow in academic geekiness and address another interesting aspect of the memorandum.  The memorandum takes another small step in a long process through which environmental trading has lost its ideological overtones.  And that loss may have some interesting implications for the future of environmental law.

Thirty years ago, writing about environmental trading systems was rife with ideology.  According to many of their legal-academic proponents, these trading systems were not just more efficient ways to govern.  They also offered the prospect of removing decision-making from the sclerotic, domineering central government and transferring it to private decision-makers.  In other words, they offered a possible escape from a New-Deal, expert-centered, centralized mode of decision-making that many thinkers on the right, and even in the political center, had come to disdain.  The frequent use of the adjective “market-based” to describe these regulatory systems—often in contrast to the pejorative phrase “command and control”—reflected those overtones.  Environmental trading was not just about efficiency.  It was about reconciling environmental protection with a libertarian conception of freedom.  Or, at least, that was the expectation and the hope.

Fast-forward thirty years, and some things haven’t changed.  This new memorandum still reflects widely-shared hopes that environmental trading systems can lead to economically and environmentally preferable outcomes.  But the libertarian overtones are gone, as is the bashing of government.  Instead, the new memorandum envisions a major role for government: it will provide lots of guidance on trading systems, and it will engage in elaborate planning exercises that set the ground rules for trading before it begins to occur.  Environmental trading, in other words, will be highly technocratic, and the New Deal-style expert will still be there, pulling the strings behind the whole enterprise.  That expectation is hardly unique to the vision of this one particular memorandum.  Indeed, it really just reflects reality.  From carbon trading to fisheries management, we have learned that for environmental trading systems to work—and, sometimes, they do—sophisticated government actors will have to be centrally involved in their design and ongoing management.

But even if the environmental trading systems envisioned by this memorandum bear little resemblance to the libertarian-tinged fantasies of their early legal-academic proponents, they also don’t represent a pure resurgence of New Deal-style regulation.  During the New Deal, the Civilian Conservation Corps did much of the actual work of landscape restoration; the men that actually dug the dirt worked on government paychecks.  That isn’t the current vision.  Instead, the memorandum directs government agencies to facilitate the involvement of mitigation banks, which are private, and often for-profit, enterprises.  So while the New Deal expert may be back (if indeed he ever left), he or she is now embroiled in a rather modern-sounding public-private partnership.

So why might this all matter (or, more specifically, why might it matter to someone who doesn’t care so much about theories of regulation)?  This is where things get quite speculative, but this is just a blog post, so here goes.  The right ideology affinities do allow legislation to get passed, and administrative policy to get implemented, just a little more easily.  And if that’s so, the loss of environmental trading systems’ semi-libertarian halo may be an unfortunate development, at least in this age of semi-libertarian political ascendancy.  That halo never had much intellectual justification; it didn’t really describe how trading systems actually worked.  But to the extent it got politicians to think, inaccurately, that environmental trading was about freedom and limited government, it might have made a few forms of environmental protection just a little bit easier to accomplish. 

Now the bloom has mostly fallen off that rose.  Sometimes I wish we had it back. 

- Dave Owen

November 3, 2015 | Permalink | Comments (1)

Monday, November 2, 2015

U.S. News Oops

Can you spot the problem?

Us news survey

I wonder what this does to the validity of the survey results.

-Dave Owen

November 2, 2015 | Permalink | Comments (0)

Monday, October 19, 2015

Sports Gambling, the "Throw Away Culture," and the Environment - the Common Denominator


Scott Van Pelt, a popular media figure at ESPN, recently criticized the growth of daily fantasy football sites like FanDuel and DraftKings, citing their exploitative nature and capitalizing on human greed. I'm fairly against the grain when it comes to the issue of gambling, and definitely believe it plays into the baser instincts of human nature. I apply that sentiment to all forms of gambling, from sports betting, to casinos, state lotteries, and other forms. While it undoubtedly makes some people very wealthy, and particularly the entrepreneurs engaged in the business side of gambling, it's exploitative nature makes the poor poorer, even if there are those who can engage in it responsibly just for fun (if increasing the likelihood of losing money that you already have in hand is your idea of fun).

It strikes me, however, that pretty much any business enterprise is on a spectrum that spans human need on one end and human greed on the other. The difficulty is when the line is crossed between need and greed. Want is somewhere in the middle of the spectrum, of course, and one certainly can want and obtain things that they may not technically need without being motivated by greed. Nonetheless, querying why we might publicly criticize on national TV something like sports gambling on the one hand, but not "greedy" consumption patterns on the other is curious to me.

I am not a business expert by any means, but I do have a basic understanding of the many different ways that one can run a business enterprise. Some companies no doubt seek to make high-quality products that will last a long time without needing replacement. Other companies have incorporated sustainability into their business models, because they recognize the impacts of consumption on the environment and believe it is good business--especially if they want to be in business for the long term--to reduce the negative impacts of consumption. Many business models, however, are aimed at feeding a continual stream of consumption, purposefully encouraging the replacement of the products that we have. Consider the giggles one gets walking into the AT&T store with an iPhone 4, when the current model is the iPhone 6S. This happened to my wife just the other day. "Get a new phone every year" is the new plan that is going around now. A lot of energy and other resources go into the production of billions of cell phones, not to mention byproducts resulting from the process, such as chemicals and other components entering the general waste stream. But the need, here most likely greed, to get the newest and best thing is almost part of the fabric of American culture. This recognition is nothing new--consider the well-worn quote from economist Victor Lebow's 1955 article in the Journal of Retailing:

"Our enormously productive economy demands that we make consumption our way of life, that we convert the buying and use of goods into rituals, that we seek our spiritual satisfaction and our ego satisfaction in consumption. We need things consumed, burned up, worn out, replaced and discarded at an ever-increasing rate."

A major irony of Pope Francis's recent visit (as pointed out by Stephen Colbert), is that his criticism of our "throw away culture" was met with an amazing amount of American "entrepreneurship"--Pope Francis merchandise was everywhere during the visit, in the form of Pope medallions, pullovers, coffee mugs, Pope Francis cologne (you read that right), hats, life-size cardboard cutouts, and even gold rimmed porcelain plates inscribed with a tweet from Pope Francis.

Of course we waste copious amounts of food, which is a basic necessity, to the tune of $162 billion annually. But we also commoditize water from melting polar ice caps; increasingly consume meat, and particularly beef, that threatens the global climate and is accelerating biodiversity loss; and witness hermit crabs, at risk of losing their shells from ocean acidification, make new homes in tootpaste caps, while 90% of seabirds have plastic in their guts as a result of our plastic throwaway culture. As Jason Clay has pointed out, the world is currently consuming 1 1/3 earths worth of resources annually, and one American consumes as much as 43 Africans. Clay also projects that even as populations continue to climb, increased consumption patterns will require that we triple the provision of goods and services over the next 50 years--which will be impossible to do without wrecking the planet unless society makes a dramatic shift toward sustainability. Consider these images, visually demonstrating the consumptive nature of our culture, part out of basic need and part out of greed.

In the end, we all want things cheap, new, and often. Sometimes greed is the motivator, sometimes it is genuine need. But while I believe high profile analysts are right to point out the greed that drives sports gambling and threatens the integrity of sport, we would do well to place more pressure on harmful, greed-driven consumption patterns that continue to threaten the environment we depend upon for basic needs. Unless we do so, we are taking the riskiest gamble of all.

- Blake Hudson

October 19, 2015 | Permalink | Comments (0)

Friday, October 9, 2015

More Irony, More Complexity in Sixth Circuit Clean Water Rule Decision

Dave’s post about the Sixth Circuit’s decision today placing a temporary stay on the Clean Water Rule aptly notes irony and complexity in the court’s ruling:  the elements of the Rule with which the court finds potential fault may actually benefit the petitioners’ anti-regulatory objectives.  Another irony, and layer of complexity, is that the petitioners obtained the stay from a court that they believe lacks jurisdiction to hear the case. 

The Sixth Circuit decision arises in the context of a petition for review brought by eighteen states directly in courts of appeals pursuant to Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1).  That provision provides for challenges to certain agency actions under the Clean Water Act to be brought directly in courts of appeals as petitions for review rather than in federal district courts. 

The petitioners, who oppose the Clean Water Rule, would rather their challenge not fall under § 509(b)(1).  This is because agency actions that fall under § 509(b)(1) can be challenged only by a petition for review and not in any subsequent proceeding.  Thus, if the Rule falls under § 509(b)(1), a defendant to an EPA enforcement action could not invoke, as a defense, that the Rule is impermissibly broad and the Act therefore does not apply.

Why did the petitioning states file a petition for review under § 509(b)(1) if they don’t believe it applies—or at least don’t want it to apply?  The petitioning states filed both complaints in district courts and petitions for review in courts of appeals.  They filed their petitions protectively, merely to protect against the possibility that their district court challenges will be dismissed for lack of jurisdiction on the ground that they must be brought instead as petitions for review under § 509(b)(1).  [Two district courts have held that challenges to the Rule must be brought under § 509(b)(1), and one has held that they can be brought in district court.]  Thus, the petitioners have moved to dismiss their own petitions for lack of jurisdiction, hoping that the Sixth Circuit will hold that challenges to the Clean Water Rule should be brought as suits in district court. 

If the Sixth Circuit agrees with the petitioners on the jurisdictional question, it will have to dismiss the petitions for review, which will dissolve the stay as well.  In granting the stay, the Sixth Circuit noted that it will decide the threshold jurisdictional question “in a matter of weeks.”  Thus, if the petitioners are correct that the Sixth Circuit lacks jurisdiction, their stay from the Sixth Circuit may be very short-lived.  Of course, if the petitioners win on the merits, then they will have defeated the Rule and won’t be sorry that they had to proceed under § 509(b)(1).  What the petitioners do not want—and what still may happen—is for the Sixth Circuit to hold that § 509(b)(1) applies and then to uphold the Rule on the merits.

−Todd Aagaard

October 9, 2015 | Permalink

The Irony of the Sixth Circuit's Clean Water Rule Stay

This morning, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon which no one would have thought to comment.

According to the plaintiffs—and, now, the Sixth Circuit—EPA and the Army Corps violated that principle when they included distance-based jurisdictional criteria in the final rule.  Under the new regulations, wetlands that are more than 4,000 feet from a categorically jurisdictional water feature are categorically non-jurisdictional.  Under the proposed rule, those wetlands would have been subject to case-by-case jurisdictional determinations.  The final rule also includes specific numeric distance limitations on the definition of “adjacent” waters, which also are categorically jurisdictional.  These distance limitations, the court concluded, were not logical outgrowths of the proposed rule, and it therefore stayed implementation of the rule in its entirety.

The irony here is that, in the long term, the states may have shot themselves in the foot.  Or, at best, they’ve just achieved a little bit of largely inconsequential delay.  The state plaintiffs brought their claims for fundamentally anti-regulatory reasons: they wanted less federal jurisdiction, and they wanted more predictable limits upon that jurisdiction.  And the numeric distance limitations did just what the states wanted (though not as much as they wanted): they established boundaries on federal jurisdiction, and they did so on the basis of distance, which is typically more transparent and predictable than a complex science-based determination about hydrologic and ecological connectivity. 

Indeed, that move from science-based, site specific analysis to more blunt and categorical exclusions is precisely why environmental groups are upset about the distance limitations.  Those groups generally favor the new rule, but they have brought suits specifically focused on the very distance limitations that gave the states their “victory” today.  And if the ultimate result of this victory is that the distance limitations come out of the rule, the states will have succeeded in making the rule—from their anti-regulatory perspective—worse than it is at present.  The environmental groups, meanwhile, may just have achieved a key step toward excising the part of the rule that they particularly dislike.

Of course, all of this may turn out to be a tempest in a teapot.  As I’ve argued previously (and as EPA itself has repeatedly pointed out), the new rules don’t mark much of departure from previous practices.  In the field, this court decision won’t change much.  And the decision itself may not last.  As dissenting Judge Keith pointed out, the Sixth Circuit still has to decide whether it actually has jurisdiction to issue this stay.  If it finds that it lacked jurisdiction, the matter will revert to the district courts.  And if the issue does remain with the Sixth Circuit, this is just a preliminary stay.  I think there is some credible basis for these logical outgrowth arguments, but there also are some very credible responses.  With another round of briefing and argument, and a bit more time to think, the Sixth Circuit could come to a different outcome—which, then, may well be reviewed by the United States Supreme Court.

So stay tuned, and remember that in this dispute, things are not always as they seem.

-Dave Owen

October 9, 2015 | Permalink | Comments (0)

Wednesday, October 7, 2015

Idaho Law Review Call for Papers - Hydropower and the Energy of the Future: Is there a Place for Dams?




The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.

The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.

For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at:, or Professor Jerrold Long at Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at

October 7, 2015 | Permalink

Monday, October 5, 2015

An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law

On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands.  In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being.  The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people.  Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . .  values” on public lands.  This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research. 

The fracturing rules that the BLM finalized in March 2015 are primarily informational.  (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.)  They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices.   The rules also require operators, after conducting a fracturing operation, to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information.  Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status.  Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing.   Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions.  This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.

In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation.  Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example.  For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate.  Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state.  For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands.   These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.

The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes.  It also has broader implications for environmental and land use law.  In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA).  And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow.   This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act.  Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act.  Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution. 

The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws.  For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands?  It would, it seems, following the court’s logic.   Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.  

Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law

October 5, 2015 | Permalink | Comments (0)

Environmental Law, Environmental Politics, and Safety Valves

EPA decided on Thursday to issue a new national ambient air quality standard (NAAQS) for ozone.  EPA’s final rule sets the ozone NAAQS at 70 parts per billion (ppb), 5 ppb more stringent than the previous standard of 75 ppb, but at the upper (more lenient) end of the range of 60-70 ppb that was recommended by the agency’s Clean Air Science Advisory Committee.  The final rule is widely perceived as a compromise between public health objectives and concerns over the economic impacts of a more stringent ozone standard.  Under the Clean Air Act, however, it is well established that EPA’s judgment in choosing a NAAQS standard is supposed to be guided entirely by science, not economic costs.  See Whitman v. American Trucking Assns., 531 U.S. 457 (2001).

Environmental and public health advocacy organizations are criticizing the new standard as inadequately protective and scientifically indefensible.  One can indeed fault the Obama Administration for playing politics by compromising the Clean Air Act’s public health objectives, as it also did in 2011 when it rejected EPA’s attempt to promulgate a more stringent ozone standard.  But environmental politics are of course vitally important to obtaining results.  The new compromise ozone standard will make it more difficult for industry to lobby Congress to enact legislation overriding EPA’s standard than it would have been if the standard were more aggressive.  The political risk, not just to the Obama Administration generally but to the ozone standard specifically, of a more stringent standard would have been considerable.  The Administration’s compromise, by virtue of its political resilience, thus might actually result in cleaner air than a more aggressive but more politically susceptible standard.  The Administration’s compromise also undermines a broader caricature of EPA as a blindered agency unattentive to the economic consequences of its policies—a narrative that is both dangerous and untrue.  In this way, the Administration’s discretionary judgment to choose a new ozone NAAQS at the more lenient end of the scientifically defensible range of options acts as a potentially beneficial safety valve, mitigating the political firestorm that might have resulted from a more aggressive new rule.

The role of political safety valves in environmental law and politics has received some attention from environmental law scholars, but could use more.  In a recently posted draft paper on SSRN, Nathan Richardson (South Carolina) argues that the major questions doctrine, which allows courts to avoid giving deference to agency interpretations of statutes where the issue implicates particularly weighty policy questions, can serve as a beneficial safety valve that may reduce courts’ urge to jettison deference to agency interpretations altogether.  Like the new ozone rule, the major questions doctrine has elicited concern about whether it will undermine environmental policy—for example, by making it easier for courts to invalidate EPA’s new Clean Power Plan.  Richardson’s paper, however, argues that in the long run, the doctrine may help preserve agency deference.

Similar controversies have long plagued federal lands disputes, where Congress has sometimes enacted appropriations riders that create isolated exceptions to federal environmental requirements, such as a provision in a 1995 appropriations bill that streamlined environmental planning for certain timber projects on public lands.  Richard Lazarus, among others, has criticized such appropriations riders as “nondeliberative,  back-door, private deal-making.”  This characterization may be accurate, and the appropriations process clearly is not an ideal forum for deliberative democracy, but the safety valve that it offers may have some important pragmatic benefits that should be considered.

My point is not that political compromise is always justified.  But a political compromise may sometimes be justified at least partly on the basis of its safety valve benefits.  Whether a particular political compromise is justified because of its safety valve benefits will depend on weighing the various possible outcomes, and reasonable and informed minds will likely differ in making that assessment.

—Todd Aagaard

October 5, 2015 | Permalink