Thursday, July 10, 2014
In April, 2013, I wrote a post about The Aransas Project v. Shaw, a case involving water management agencies, whooping cranes, and the Endangered Species Act. The defendant water agencies had issued permits for water withdrawals upstream of important whooping crane habitat. According to the plaintiffs, the combination of those permits and the 2008-09 drought reduced freshwater inflows to the estuary where whooping cranes feed, leading to food shortages that killed off large numbers of whooping cranes. Those deaths, the plaintiffs argued, were unpermitted "takes" and were prohibited by section 9 of the ESA.
A federal district court agreed with this theory, but on June 30, the Fifth Circuit reversed. It determined that the district court had failed to apply a "proximate cause" analysis to the take claims. Because the district court failed to apply the correct legal standard, the Fifth Circuit found that it owed no deference to the district court's factual findings. Considering the record de novo, the Fifth Circuit concluded that the water agencies' activities were not the proximate cause of the whooping cranes' deaths.
The reasoning that led the Fifth Circuit to its de novo standard is, to say the least, interesting. In fact, the district court did recite the proximate cause standard, and it did purport to apply it. It just applied it in a way that the Fifth Circuit found overly simplistic. That could be a basis for reversal--appellate courts do review factfinders' factual conclusions for abuses of discretion--but it doesn't seem like a basis for de novo appellate review.
There's also a whiff of hypocrisy in the Fifth Circuit's reasoning. It concluded that the district court had been too simplistic because it had failed to engage with the complexities and contingencies of the alleged causal chain. Perhaps that's a fair critique (for an argument that the district court made a mess of the case, see the comments on my earlier post); I am not familiar enough with the factual record of the case to know.
But the Fifth Circuit's substitute reasoning is also simplistic. Its core conclusion is that "[c]ontingencies concerning permittees' and others' water use, the forces of nature, and the availability of certain foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected 2008-09 die-off found by the district court." That conclusion contains a big logical leap, which I don't think is remedied elsewhere in the opinion: it ignores the reality that uncertainty is often a matter of degree. Just identifying some uncertainty within a chain of causation does not mean that the ultimate outcome could fairly be described as "fortuitous." Instead, one must ask how contingent the links in the causal chain were, how much other contributing causes might have added, and how long the causal chain was.
To put it in simple mathematical terms, suppose that event A has a 90% chance of causing event B, which has a 90% chance of causing event C, which has a 90% chance of causing event D. There is uncertainty at every stage of this causal chain, yet the odds of event A leading to event D still are just under 66%. We'd probably be comfortable calling event A the proximate cause of event D. On the other hand, if each event has only a 30% chance of causing the next event, then the odds of event A leading to event D are less than 1%. Contingencies are present in both causal chains, and the chains themselves are the same length. But the causal relationships are drastically different.
Or consider historical examples. One hundred years ago, Gavrilo Princip fired two shots that set in motion a series of events culminating in the slaughter of World War I. In hindsight, history often looks falsely inevitable, yet I suspect most historians would agree that the links between those shots and the horrors of trench warfare in northeastern France were too many, and too contingent, to identify Princip as the proximate cause of the Battle of the Somme. But historians probably will identify the 9/11 attacks as the proximate cause of the U.S. invasion of Afghanistan, even though a contingent causal chain linked those events as well.
The point, again, is that it's not enough to just name uncertainties or other contributing causes, though that's a logical first step in the analysis. We also need to think about how much they matter. And the Fifth Circuit didn't really do that. If it had, the results might have been different. The relationship between permits that allow water withdrawals and actual water withdrawals is pretty direct. So too is the relationship between upstream water withdrawals and downstream reductions in flow. The occurence of a severe drought in 2008-09 was, of course, a chance event, but there's very little chance of Texas avoiding severe droughts throughout the entire duration of a water use permit. The last links in the causal chain--reduced inflows allegedly causing ecological effects to ripple up the food chain, causing whooping cranes to die off--are probably the most uncertain, but reduced inflows damaging an estuary's food chain is pretty plausible, and just labeling that outcome contingent ought to have been the start, not the end, of the analysis.
So how much does the case mean for ESA litigation? The answer, I suspect, is not a whole lot. Even if courts were committed to embracing the gory details of uncertainty analysis, winning ESA section 9 cases would still be a challenge, for the evidentiary burdens plaintiffs face would be substantial. For that reason, plaintiffs don't often try. This latest decision will likely just reinforce that reality.
- Dave Owen
Thursday, June 5, 2014
Last year, the Department of Energy published a short pamphlet on the future of hydropower in the United States. The pamphlet contains this graphic, which shows sites where existing dams and waterworks have significant hydropower potential but don't actually produce hydropower. From an environmental perspective, those are very promising sites; the environmental consequences of adding hydropower to an existing dam or lock compare rather favorably to the consequences of building a new dam--or fossil fuel power plant.
What's particularly striking about the graphic is where the greatest potential is concentrated: near the heart of coal country. Why does that matter? On Monday, EPA released its proposed CAA section 111 rules covering greenhouse gas emissions from electrical generating units. The proposed rules would impose statewide limits but would leave states with flexibility to decide on their approach to meeting those limits. One possible approach, which EPA specifically notes in the proposed rule, is to switch from carbon-intensive energy sources, like coal, to energy sources that with lower carbon intensity. Given its current availability and price, natural gas is one likely beneficiary of the new rules. But this map shows that coal country has another intriguing alternative.
The ABA Section on Energy and Environment would like law professors in the U.S. to fill out the survey linked here. It takes only about ten minutes, at most. For more details, see below.
On behalf of the American Bar Association Section of Environment, Energy, and Resources ("SEER"), we would like to solicit input from law professors on an issue very important to SEER: the participation of environmental, energy, and natural resources law professors-a group that is typically under-represented in the Section. We would like your feedback on the types of benefits SEER can provide that would be of most interest to you. One of SEER’s specific goals is to increase the diversity of its membership to include more environmental, energy, and natural resources law faculty.
To that end, we ask that you follow the link below and complete a short survey that will help us to understand how SEER can best serve the academic community, and how SEER can encourage more academic participation and tailor SEER events to your specific interests. The survey should only take a few minutes to complete and will give each participant a chance to win a fee waiver to a SEER conference of his or her choosing, a value of up to $800.00!
The survey needs to be completed by no later than Friday, June 20, 2014.
Survey Link: americanbar.qualtrics.com/SE/?SID=SV_2o7Mqo96Sic71pX
Thanks for your time, and please do not hesitate to contact Omar Ortiz, Membership and Marketing Associate on ABA SEER staff, at firstname.lastname@example.org with any questions or feedback.
ABA SEER Members and Leadership Development Program Participants
Tuesday, May 13, 2014
CALL FOR PRESENTERS
AALS Section on Property
“The Place and Scope of Economic Analysis
within Competing Conceptions of Property”
2015 AALS Annual Meeting
January 2-5, 2015
The AALS Section on Property is pleased to announce this Call for Presenters for its program during the 2015 AALS Annual Meeting in Washington, D.C. The Section’s broadly-themed program, entitled “The Place and Scope of Economic Analysis within Competing Conceptions of Property,” will include a diversity of opinions on the proper place, scope, role, and utility of economic analysis in understanding, evaluating, and comparing varying conceptions of property. Confirmed speakers include Eric Claeys (George Mason University School of Law), Henry Smith (Harvard Law School), Laura Underkuffler (Cornell Law School), and Lua Yuille (University of Kansas School of Law). Through this Call for Presenters, the Section seeks one additional speaker who will advance this session’s broad theme and complement the scholarly perspectives of the confirmed speakers.
Full-time faculty members of AALS member law schools are invited to submit a one-page abstract of their presentations to Timothy Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at email@example.com by June 20, 2014. A review panel consisting of five property scholars will select a submission for inclusion in the program and notify the selected presenter by mid-July. The selected presenter will be responsible for paying his/her annual meeting registration fee and travel expenses.
There is no publication commitment associated with this panel. However, the Texas A&M University Law Review graciously has offered to publish essays or articles authored by any or all of the presenters on the topic of the panel.
Please feel free to direct questions to Professor Mulvaney at firstname.lastname@example.org.
Friday, May 9, 2014
Today, the Department of the Interior and the Department of Commerce released two proposed rules and one proposed policy, all pertaining to the Endangered Species Act’s treatment of critical habitat. One rule would make some subtle changes to the standards used in designating critical habitat, and the other would update the regulatory definition of “adverse modification” of critical habitat. The proposed policy would provide guidance on the standards used to exclude areas of habitat from critical habitat designations.
This post provides a quick first take on the rules, with a primary focus on the redefinition of adverse modification.” That redefinition could be a big deal. Section 7 of the ESA prohibits federal agencies from taking actions likely to adversely modify critical habitat, and that might seem, at first blush, like the most stringent provision in a law that is already legendary for its stringency (whether it deserves that fearsome reputation is another question). Implementing the ESA’s critical habitat provisions has also been difficult—years ago, Oliver Houck aptly referred to critical habitat as “an agony of the ESA”—and these rulemaking processes offer the Fish and Wildlife Service and the National Marine Fisheries Service the opportunity to relieve some of that difficulty.
Why promulgate these new rules? The short answer is litigation. Until 2004, the services operated under 1986 regulations that defined “adverse modification.” But multiple courts rejected that definition, finding that it illegally excluded actions that would compromise species’ recovery but not their survival. The last of those decisions, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) sounded the death knell for the old regulations. Both services sent memos to their biologists instructing them to cease relying upon the regulatory definition. The process of replacing the defunct regulations hasn’t exactly proceeded quickly, but those court decisions made it all but inevitable.
In addition to court cases, the adverse modification standard has been beset by a few other problems. One is its uncertain relationship to ESA section 7’s prohibition on federal agency actions likely to “jeopardize” the continued existence of listed species. In the 1990s, the Department of the Interior often asserted (partly in reliance on the now-defunct regulations), that the two standards were functionally identical, and that the adverse modification prohibition had no independent function. Even after the Gifford Pinchot decision, practice continued to reflect those earlier claims. In a study of over 4,000 biological opinions issues between 2005 and 2009, I found none that reached an adverse modification finding without also finding jeopardy (the prohibition wasn’t completely inconsequential; biologists told me that it affected their negotiations over project changes). As a basic matter of statutory interpretation, that seems problematic. Lawyers generally presume that Congress doesn’t put redundant words in statutes, yet the services’ implementing approaches turned the adverse modification prohibition into something close to surplusage.
The third problem involves de minimis harms. The ESA itself contains no de minimis exception to the adverse modification prohibition, but the services have never wanted to apply that prohibition to every federal action that modifies critical habitat for the worse. So they wrote a rather fuzzy de minimis standard into their old regulations and guidance, which applied the adverse modification only to actions that “appreciably diminished” the value of critical habitat. “Appreciably diminish,” in turn, meant “considerably reduce” that habitat’s value. In that same study, I found that in practice, the services often applied these definitions in ways that tolerated fairly substantial alterations of critical habitat, and that the services lacked a coherent and principled basis for distinguishing harms that counted as adverse modification from those that were truly de minimis. That seems rather problematic, and a new rulemaking would afford the services an opportunity to address the de minimis problem in a more rigorous and transparent way.
The Proposed Rule
So does the proposed rule address these issues? The answers, in sequence, are yes, partly, and not really at all.
First, the proposed rule does fix the heart of the services’ Gifford Pinchot problem. It makes very clear that impacts to recovery must be considered in an adverse modification inquiry. Here’s the proposed definition:
“Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.
Second, the proposed rules clarify the relationship between jeopardy and adverse modification. The claims that the adverse modification standard is redundant are conspicuously absent, and instead the services provide this clear statement (from the designation rule preamble rather than the adverse modification rule):
In addition to serving as a notification tool, the designation of critical habitat also provides a significant regulatory protection—the requirement that Federal agencies consult with the Services under section 7(a)(2) of the Act to ensure that their actions are not likely to destroy or adversely modify critical habitat.
In the 1990s, and even in the 2000s, the services weren’t saying things like that.
The services also provide some clarification about when the adverse modification standard will add something to the protections provided by the jeopardy standard. Specifically, they anticipate the adverse modification provision becoming significant when habitat destruction is unlikely to affect a species’ present-day population dynamics—perhaps because the habitat is unoccupied—but is likely to affect a species’ recovery prospects. The most concise explanation comes from the preamble to the designation rule:
This benefit should be especially valuable when, for example, species presence or habitats are ephemeral in nature, species presence is difficult to establish through surveys (e.g., when a species such as a plant’s “presence” may be limited to a seed bank), or protection of unoccupied habitat is essential for the conservation of the species.
The preamble to the adverse modification rule fleshes out that concept in more depth.
While that helps clarify the relationship between jeopardy and adverse modification, other important questions remain unresolved. One particularly important question is whether adverse modification should have a lighter threshold than jeopardy even where the habitat in question is occupied. I’ve argued elsewhere that it should, and some others—both within and outside the services—agree. But that issue isn’t really addressed here.
That reflects a broader problem. On the de minimis question, the services have provided a little bit of clarification, but I see only a hint at the principles that might define the difference between regulated adverse modifications and non-regulated de minimis changes. The services have excised the phrase “considerably reduce” from their definition of adverse modification, and have tried to provide more clarification of what “appreciably diminish” means. That's a step forward, but only a step, and what comes next isn't clear. Rather than try to paraphrase a discussion that I’m not sure I understand, I’ll just paste the key passage below:
To determine the appropriate meaning of the term “appreciably,” we ultimately found it helpful to look at the definition of “appreciate,” which means to “recognize the quality, significance, or magnitude” or “grasp the nature, worth, quality or significance.” This usage makes more sense to us in the actual application of the phrase “appreciably diminish.” The relevant question, then, becomes whether we can recognize the quality, significance, or magnitude of the diminishment. In other words, is there a diminishment to the value of the critical habitat that has some relevance because we can recognize or grasp the quality, significance, magnitude, or worth of the diminishment in a way that affects the conservation value of the critical habitat.
It is important to understand that the determination of “appreciably diminish” will be based upon the effect to the conservation value of the designated critical habitat. That is, the question is whether the “effects of the action” will appreciably diminish the conservation value of the critical habitat as a whole, not just in the area where the action takes place. For example, an action may have an adverse effect to a portion of critical habitat. The question would be, then, whether the adverse effect in that one part of the critical habitat will diminish the conservation value of the critical habitat overall in such a manner that we can appreciate the difference it will have to the recovery of the listed species. Specifically, some factors to be considered will be: will recovery be delayed, will recovery be more difficult, and will recovery be less likely. At the appropriate time after rulemaking, the Services plan to update guidance or handbook material to reflect any identified changes to the “appreciably diminish” definition in the March 1998 Consultation Handbook. These considerations should be applied cautiously so the Services do not apply a standard that is either too sensitive in light of the particular circumstances, or not sensitive enough.
Translated, I think that means something like, “observable diminishment in the value of critical habitat will count as adverse modification, unless that standard is too sensitive, in which case… well, we’ll get back to you.”
To be fair, I think that the services face a really difficult problem. Finding a de minimis threshold that (a) fits with the statutory language; (b) will not become administratively overwhelming; and (c) will fulfill the statutory goals of protecting species is going to be very challenging. I think the services’ best options for finding such a standard, and making it work, would have to be linked to regulatory efforts under other parts of the ESA. A recovery plan, for example, would be a useful document for thinking through thresholds for adverse modification and jeopardy. That hasn’t been past practice but, to the services’ credit, an “integration” group is already trying to think of ways to draw these kinds of regulatory linkages (I don’t know whether this specific one is on the table). So this rulemaking effort may just represent a step in a process toward articulating a more transparent, functional, and protective adverse modification standard.
- Dave Owen
Wednesday, May 7, 2014
In my short time as an academic, I’ve noticed an increasingly common practice: when law professors cite the work of other law professors in their articles, they tend to precede the person’s name with the title “professor.” So, for example, I might write, “as Professor Blake Hudson has pointed out, many states do very little to regulate timber harvests from private land.”
I don’t think this is a good practice. That may sound like a funny thing to say; after all, the practice is motivated by courtesy and politeness, and those are generally good things. But I think the practice creates a distinction, and implies an unjustified hierarchy, between professors and other researchers.
Consider this scenario. I’m writing a sentence that will cite two experts, who we’ll call John Poe and Jane Doe. John Poe is a professor, and Jane Doe is a public-sector attorney. The sentence might read like this: “Jane Doe has argued X, but Professor John Doe disagrees, explaining that…” For at least some readers, the title will now become relevant to their assessment of the disagreement; the implication is, “well, he’s a professor, and she isn’t, so we probably ought to give greater weight to his view.” (Of course, some people will have exactly the opposite reaction.) But Jane Doe may well have a deeper understanding of the subject, and a lot of great research comes from people who aren't professors. The better practice, I think, is to let the views stand on their merits, not based on the titles of their authors.
That doesn’t mean titles will never be relevant. Sometimes the title does help readers judge the authoritativeness of an opinion. For example, if a judge writes something about problems with the rules of evidence, it’s helpful to know that the article comes from a judge, who presumably has direct experience with the subject she describes. But for the most part, I think we should just do what academics in other fields do: provide names, not titles.
Friday, May 2, 2014
Also, and critically, the court rejected the counties' assertion that state law should determine the entire scope of an R.S. 2477 rights of way, holding that state law has provided "convenient and appropriate principles" for determining the scope and validity of an R.S. 2477 right of way, but it can be dismissed when it "contravenes congressional intent." Lastly, the court rejected the claimants' argument that using Salt Creek road to access grazing allotments could satisfy the "use" element of an R.S. 2477 claim because that use was authorized by federal grazing permits. So, in essence, ranchers holding permits couldn't assert their permitted use of federal lands as an element of what is essentially an adverse possession claim against the federal government, which makes sense.
Thursday, May 1, 2014
For a spice lover and an environmentalist there could be little more disconcerting than to learn that one's favorite hot sauce is a source of public nuisance caused by the odor of ground peppers. So, when I first learned that the City of Irwindale was threatening to seek closure of the beloved Sriracha sauce factory for causing odor pollution, I was dismayed with the prospect of choosing between my two passions. However, as my colleague Ernesto Hernandez, who has written an op-ed piece (as well as an interview) on the matter after attending a local public hearing clarified, the local environmental protection department seem to have little concern about pollution abatement at the Sriracha factory. While news reports are abuzz with this very hot issue indeed, the outcome is as yet unclear. The City of Irwindale is yet to adopt a resolution on closure of the factory. Relieving though this is, the Sriracha saga nevertheless is an intriguing issue and developments regarding this issue could well provide important lessons in bargaining.
Monday, April 28, 2014
Pace Law School seeks applicants for a new Visiting Assistant Professor (VAP) in Environmental Law. The VAP in Environmental Law will hold a one-year appointment, renewable for a second one-year term. The appointment is designed to mentor and train future environmental law professors.
The VAP will have a reduced teaching load of one course per semester, the opportunity to focus on scholarly research and writing, and the expectation that s/he will enter the law school teaching market. The VAP will receive the same office and administrative support as other faculty members, is invited to participate fully in faculty activities, and will receive a small travel and research fund. Additionally, the VAP will present a work in progress at Pace Law School’s Future Environmental Law Professors Workshop, receive feedback and mentoring from other scholars, and present a finished manuscript to the faculty at our weekly scholarly colloquium.
The salary for the VAP in Environmental Law is $55,000 per year plus benefits, including health and dental insurance. The VAP will not be eligible for a full-time tenure-track or tenured faculty appointment at Pace Law School until after six years following the completion of his/her term in residence.
Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. Pace is committed to achieving equal opportunity in all aspects of University life. Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school. Pace is committed to achieving completely equal opportunity in all aspects of University life.
Applicants should submit:
- Curriculum Vitae (that lists three references and law school courses the candidate would be interested in teaching)
- If possible, one published scholarly article or unpublished paper draft that reflects the candidate’s scholarly interests and potential
The application deadline is May 1, 2014.
If you would like to be considered for a Visiting Assistant Professor in Environmental Law appointment beginning in the Fall of 2014, please send your application materials via email to Professor Jason J. Czarnezki at email@example.com. Only electronic submissions will be accepted.
Thursday, April 24, 2014
China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?
News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.
Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.
Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?
Jared Goldstein has a fascinating piece in Thursday's morning edition of Slate on the roots of constitutional vigilantism behind the recent protests on the Bundy Ranch in Nevada. Goldstein traces a common perspective linking the Klan, the Posse Comitatus, the '90s militia movement, the Tea Party and the groups out in force at the protests over one man's desire to continue illegal grazing on federal lands. Well worth the 5 minute diversion!
-- Michael Burger
Monday, April 21, 2014
Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution. Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves. They’re likely to be disappointed.
Lawsuits seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered. My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.
In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act. However, this claim is just as unlikely to stick, for good reason. As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees. This is because the impact is neither a “permanent physical occupation” of the property by the government, nor is it an excessive regulation that deprives property of “all economically beneficial use” or has otherwise gone “too far” in adversely affecting reasonable investment-backed expectations of the floodplain owners (in the words of the U.S. Supreme Court). It is simply not reasonable to settle in the floodplain and expect that the property will never flood.
These plaintiffs are attempting to bring their claims within the purview of a 2012 Supreme Court case, Arkansas FGC v. U.S, where a landowner (the State Fish & Game Commission) prevailed on its claim that the Corps had physically taken a flowage easement over its land. The case raised a unique set of facts and the decision is a remarkably narrow one, and it is completely inapposite to what happened on the Missouri River. Here’s why.
In Arkansas, the Corps opted to depart from its Water Control Plan for the dam in question by releasing water over longer periods each year during a seven-year period, not because of any physical imperative (e.g., unusual amounts of rain or snow) but because farmers urged it to do so to keep their croplands dry for longer periods during harvests. The deviation caused a dramatic increase in flooding in a wildlife management area owned by the State, causing widespread and permanent damage to its trees. The flooding was significant enough, for long enough periods, to change the character of the area and to substantially interfere with the State’s ability to use its land. The Corps had effectively taken title to the land without going through the appropriate processes for exercising the government’s power of eminent domain.
In stark contrast to the 2011 Missouri River flood, the Corps’ intentional flooding of Arkansas’s land was the direct and proximate cause of the foreseeable destruction of the State’s property. The Corps deviated from its Arkansas Plan in order to benefit the farmers, when it knew (or should have known) that the deviation would inevitably destroy the State’s land. The Corps created winners and losers, and the Supreme Court forced it to pay the loser.
On the Missouri, the 2011 flood made losers out of just about everyone. The Corps’ flood control structures were taxed to their limits by unprecedented amounts of snowmelt and rain over a long period of time in the spring and summer of 2011. In April, Rocky Mountain snowpack was 140% of normal; later in the summer, rainfall was three to six times normal in the upper Missouri River Basin. At Sioux City, Iowa (the demarcation between the upper and lower river), runoff measured 13.8 million acre feet (MAF), smashing the old 1952 record of 13.2 MAF. The third wettest month ever documented on the Missouri River happened to be May 2011 (10.5 MAF) and the fifth wettest was July 2011 (10 MAF). See National Weather Service, The Historic Missouri River Flood of 2011; Senate Report 112-075 - Energy and Water Development Appropriations Bill, 2012. That water had to go somewhere, and once the dams were filled to capacity, it went downstream and into the floodplain, as rivers naturally do (especially the Missouri, which is widely known for its flood-prone tendencies).
The plaintiffs argue that the Corps has abandoned its flood control mission in favor of other priorities on the Missouri River. Specifically, they claim that the Corps kept the reservoirs full in the spring to benefit recreation and endangered species, and that fuller reservoirs means less storage for flood waters. The factual record doesn’t back them up, and the law is more nuanced than they allege. In truth, Congress directed the Corps to build the dams and manage the system for seven purposes in addition to flood control: navigation; hydropower; water quality; water supply; irrigation; recreation; and fish and wildlife. Flood control and navigation may be toward the top of the list, but they are far from the only concerns that drive river management. More to the point, none of the other purposes were prioritized at the expense of flood control in 2011. The Missouri River system was operated in accordance with the Master River Manual in response to abnormal snowmelt and rainfall that just kept coming for months on end. The operations were dictated by conditions, not by other priorities. Sometimes, the river simply reclaims its floodplain, despite human efforts to hold it back.
The tired refrain that the government elevated the concerns of fish over people is a red herring. The real problem is that people wanted to settle in the floodplain, so the federal government undertook flood control, which prompted more people to move into harm’s way. It’s ironic that the landowners who cry “foul” today have received a bounty of flood control-related benefits from the government through the years. No doubt the flood damage to their properties in 2011 would have been worse if the federal government hadn’t built dams and other structures on the Missouri River. Consider the 1993 flood, which set the record for the highest water level in Kansas City, but resulted in much lower discharges (flooding) than pre-dam floods in the 1800s and early to mid-1900s.
Meanwhile, individuals and communities who chose to reside in the floodplain demanded additional protection through the construction of levees, dikes, and revetments on the river and its tributaries, along with subsidized flood and crop insurance. Once they put themselves in harm’s way (aided and abetted by government), it’s only natural for sympathetic officials to provide federally funded disaster relief when the inevitable happens. These are policy choices that the government and floodplain communities have made throughout the many years of floodplain occupation, and we can argue the pros and cons of these choices until we’re out of breath without ever reaching a consensus. Don’t get us wrong—no one wants to see human suffering in the wake of a flood. But adding a constitutional takings claim to the list of government payouts demanded by property owners is a wholly unwarranted sort of “double take” from the government (and the taxpayers) (see Unnatural Disasters Chapter 10). Instead, we should be talking about how to make people safer, how to make buildings more flood resilient, and about cases where it is more prudent to retreat from the floodplain and out of harm’s way.
- Sandi Zellmer
Friday, April 11, 2014
On Friday, April 11, I blogged live from the Global Environmental Constitutionalism Symposium held at Widener Law in Delaware. A remarkable group of scholars from Australia, the Bahamas, Columbia, New Zealand, Canada, the Philippines, Italy, Israel, South Africa, France, Nigeria, and the United States converged to discuss the value of incorporating environmental rights and protections for resources explicitly within the text of national and subnational constitutions.
Klaus Bosselmann, of the University of Auckland Faculty of Law, provided an overview of the different typologies of eco-constitutionalism, and the many different forms that it might take - from loose models focused on connections between economics and the environment (i.e. "sustainable development") to more robust models prioritizing ecological limitations and systems over protection of other rights, such as those related to economics (since sound economics depends upon a healthy environment). Germany has moved along this spectrum toward the latter, with the German Constitution "greening" over time with a number of environmental amendments. This shift, of course, has manifested in the aggressive renewable energy targets established by the German Renewable Energy Act of 2000, among other shifts in German policies related to the environment. Bosselmann believes more comparative work needs to be done between "green" constitutions globally and that society should consider exploring whether a global or international environmental constitution is emerging that would be a natural extension of increased globalization over recent decades. We have a number of global environmental agreements - is there enough cohesiveness to see a global environmental constitution emerging?
Don Anton, of the Australian National University College of Law, discussed regions of the world where environmental constitutionalism is most needed, but where it has currently not gained a foothold - that is, liberal economically advanced nations. Market economies, such as Australia, the United States, and many nations in Europe do not have environmental constitutional protections. Anton has long argued for incorporating environmental constitutionalism into these nations and doing so to protect the environment or resources per se. Having not seen sufficient action in that area, however, he argues for a pragmatic incrementalism that establishes protection of human rights to environmental quality in an environmental bill of rights detailing limits on government and private actions related to the balance of economic and environmental priorities. One of the reasons he believes this approach is more likely to succeed is because such provisions effectively extend already established and well-respected notions of due process that inform other bills of rights (like the U.S.), but they just happen to be in an environmental context. Contrast this to the Christopher Stone approach of protecting trees for their own sake, which may be a much harder argument to make, at least in the current political climate. So, Anton would focus on procedural protections for how humans interact with the environment as a first step. Procedural rights receive widespread support internationally, so an incremental move toward environmental bills of rights may be able to capitalize on this inertia.
Erin Daly, constitutional law scholar at Widener Law, notes the lack of environmental constitutionalism in the text of the U.S. Constitution, and that it relies solely on judicial interpretation for limited direct effect on environmental policy. Daly then describes the recent Robinson Township case and how the Pennsylvania Supreme Court's decision went a long way toward demonstrating the potential of environmental constitutionalism within states in the U.S. (and elsewhere).
Badrinath Rao, of Kettering University, notes that developing nations like India and China are inextricably wedded to neoliberalism, and so environmental constitutionalism is of increasing importance. The Supreme Court of India has recognized the right to a clean environment under Article 21 of the constitution. The court has also incorporated notions of sustainable development, intergenerational equity, the precautionary principle, polluter pays principles, and even environmental impact assessments within its jurisprudence. The Indian Supreme Court has made a number of rulings advancing environmental protections, yet problems remain. Government bodies and private entities have ignored environmental rights recognized by the court. Complicating the issue is different views on what "right to a clean and healthy environment" means, the fact that many supreme court mandates are difficult to implement, and ideology that has pervaded the court and governmental systems. Rao ultimately asks if the judiciary is the best institution to facilitate environmental constitutionalism, and whether a fixation with neoliberal capitalism will ultimately hinder the creation of important environmental rights.
Afshin Akhtarkhavari, of the Griffith University Law School, argues that the right to water is potentially problematic when weighed against other rights, especially in post-conflict contexts, such as South Sudan. The "right to water" discussion can actually escalate conflict itself in water scarce regions. One concern is that the rhetoric of the conversation has been co-opted by special interests who would use the argument to gain control over water resources.
Itzchak Kornfeld, of the Hebrew University of Jerusalem Faculty of Law, argues that having a right to water is largely unenforceable, but is nonetheless gaining some traction in certain areas. Western neoliberalism has given rise to calls for controlling or conquering resources, whereas aboriginal cultures maintained a very different relationship to the environment. And we are starting to see these two worldviews clash. In particular the nomadic Bedouin have survived for hundreds of years in areas of scarce water supply. Yet today they do not receive a number of recognized rights that the remaining Israeli population receives. In a recent court case, a group of Bedouin sued for water rights, and the district court ruled against them. The case worked its way up to the supreme court, which said there are three normative rights for water: 1) the right under "regular" Israeli law and customary domestic and international law, 2) a constitutional right for water (though not explicit; rather it was found under the constitutional "right to dignity"), 3) and a legislative right. The court laid such a broad foundation in order to legitimate its ruling. So by bringing in international human rights and other globally recognized rights to water, the court was trying to support what was otherwise a shaky domestic legal ground for finding a water right for the Bedouin under the circumstances of the case. This represents how international law might infuse itself into domestic constitutional law in a way that protects environmental rights.
John Dernbach, of Widener Law, talked about the recent Robinson Township case, which involved a state statute that effectively preempted and prohibited local government restrictions on fracking activities in Pennsylvania. The Supreme Court of Pennsylvania held that the preemption was a violation of the "Environmental Rights Amendment" of the Pennsylvania Constitution. The amendment states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Historically, courts have basically ruled that the amendment only applies when the legislature invokes it. So this opinion, even though a plurality opinion as to the reasoning, reinvigorated the status of constitutional environmental rights in state constitutions in the U.S. [NOTE: Dernbach was instrumental in providing the foundation for the court's finding. He had laid the foundation many year's before the court's ruling. The court's reasoning finally caught up to his foresight regarding the appropriate interpretation of the law].
Jack Tuholske, who teaches at Vermont Law when not practicing public interest environmental law in Montana, discussed from a litigator's perspective a number of states that have environmental constitutional rights, and how they have been enforced with varying degrees of success. Tuholske tells a "tale of two states": Illinois and Montana. Each developed their constitutional environmental rights in the early 1970's, during the time of the greening of American law. Illinois has subsequently seen some pretty sloppy court decisions regarding its own provisions. In effect, the courts have limited the constitutional provision to only creating standing rights and allows any limitations on that standing to be implemented as the Illinois legislature sees fit. This has "emasculated" the provision in Illinois. Montana is a different story. The courts in Montana have actually applied strict scrutiny to statutes that might violate Montana's constitutional environmental provision. The value of these cases in Montana is far more than the court's holding because environmental constitutionalism has become part of the state's public discourse and culture going forward.
Professor Catherine Iorns Magallanes, of the Victoria University of Wellington, also focused on indigenous notions of the human relationship with the environment - that humans could not own or dominate nature, and that the western world has largely tried to undo this notion. Global environmental constitutionalism encapsulates an effort to regain original, pre-western notions of our relationship to the environment. She reiterated Don Anton's point that while it might work to protect nature itself through constitutional provisions, a more practical first step is to protect people's rights in the environment, since it is more likely to gain traction. She highlighted legislation in New Zealand that actually incorporates native Mauri notions of the human relationship with the environment (and even incorporates Mauri language) to protect a number of rivers in the nation. The legislative definition of one river states that: "Te Awa Tupua comprises the Whanganui River as an indivisible and living whole, from the mountains to the see, incorporating its tributaries and all its physical and metaphysical elements." It allows the Mauri to speak on behalf of the river. Similarly Te Urewera is a forested area in northern New Zealand. The government settled with the Mauri and recognized the forest as the ancestor of the Mauri (with the Mauri being the descendants). The actual legislation states that Te Urewera "is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty," that it is "a place of spiritual value, with its own mana and mauri," and that it "has an identity in and of itself inspiring people to commit to its care." This, she argues, tries to take us back to original indigenous perspectives on the relationship between humans and the environment.
Dante Gatmaytan, of the University of the Philippines College of Law, gave a presentation titled "Dead End," which expressed his view that the environmental constitutional rights provisions embedded in the Philippine Constitution have effectively become ineffectual. He argues that constitutional provisions do not matter if you do not have procedures in place allowing citizens to enforce them. In the Philippines it is standing that gets in the way. Also, other constitutional doctrines may get in the way of environmental provisions, as is the case in the Philippines, and those should be changed to allow environmental provisions to be efficacious.
A number of other fantastic speakers presented, though I was unable to attend all of the presentations and break-out sessions and capture all of those thoughts (the above summaries are also my interpretation of presenter thoughts, and may not be entirely accurate!).
As for my talk, I presented on "Structural Environmental Constitutionalism." My primary point was that much of the focus of environmental constitutionalism scholarship is on "fundamental environmental constitutionalism," which are provisions related to protecting certain resources or citizen rights in the environment. These are undoubtedly important. But structural constitutionalism is just as important, if not more - that is, how environmental governance authority is allocated across levels of government. This problem manifests particularly in federal systems, where nested constitutionally created legal systems exist. Sometimes structural environmental constitutionalism manifests in explicit constitutional text, such as in Brazil, Russia, and India where the central (federal) government is granted ultimate control over forest resources. Or it may manifest through judicial interpretation, as in the United States where federal environmental authority is construed under the Commerce Clause. Sometimes that authority is called into question, as the Supreme Court did with regard to any future "isolated wetlands" regulation that the federal government might engage in (dicta from the SWANCC and Rapanos cases). Finally, it may manifest through legislative enactments made pursuant to constitutional provisions. This happens when state governments seek to constitutionally retrieve from local governments previous grants of regulatory authority, such as when Pennsylvania attempted to preempt local government regulation of fracking (at issue in Robinson Township). Many implications arise from structural environmental constitutionalism. First, where there is an imbalance in environmental management authority across scales, correcting it can result in better management. This is the point of the emerging literature on dynamic federalism. In addition, structural adjustments to environmental regulatory authority may be more efficacious than fundamental environmental constitutionalism in some circumstances, as I have previously argued, and building off of J.B. Ruhl's work. Structural environmental constitutionalism might also bolster the efficacy of fundamental constitutionalism to the extent that latter provisions are being ignored. If levels of government previously unempowered to manage resources gain that control, then fundamental environmental provisions may be taken more seriously across all scales. Many more implications of structural environmental constitutionalism exist, and you can see the forthcoming issue of the Widener Law Review for greater detail on my arguments and the arguments of the presenters above.
Overall it was a fantastic conference and a great opportunity to hear the perspectives of the global community on this important issue. Thanks to all at Widener Law who made the conference possible.
- Blake Hudson
(David Hodas and Bob Percival present at the closing plenary):
Wednesday, April 9, 2014
The San Diego Journal of Climate and Energy Law just announced its upcoming symposium. Here's the conference description and a call for papers:
Proposals Due: Monday, April 21, 2014
On Friday, November 7, 2014, the University of San Diego School of Law will host its Sixth Annual Climate & Energy Law Symposium.
You are invited to submit a title and abstract of an article that you can present at the symposium and publish in the sixth volume of the San Diego Journal of Climate & Energy Law. If we select your proposal, the university will pay for all travel expenses to and from the symposium. You must submit your completed article to the journal’s editors by Monday, December 8, 2014, for consideration in the journal's sixth volume. View agendas and webcasts of past symposia online.
THEME FOR 2014 CLIMATE & ENERGY LAW SYMPOSIUM
The theme for the 2014 Climate & Energy Law Symposium is "Innovative Regulatory and Business Models in a Changing Electric Industry."
Regulatory frameworks and business models for electric utilities developed decades ago, and the fundamentals of the landscape are changing. Public policy, technological, and economic shifts are undermining the logic of the current system. Policies to encourage energy efficiency, increase renewable energy production, and reduce greenhouse gas emissions are changing the context in which the industry operates. Technological innovations, including distributed photovoltaics, smart meters, and energy storage are enabling customers to understand and control their energy needs. Slower economic growth, increased efficiency, and more distributed generation are contributing to slower load growth. The confluence of these factors presents challenges and opportunities for the electric industry
Academic and policy experts will analyze and assess three aspects of this complex issue:
- Regulatory Changes
- Utility Business Models
- Market Structures
All article proposals related to these broad issues in climate and energy law are welcome. It is not necessary for an article to focus specifically on California law and policy. If you are interested in participating, please submit the following materials to Zachary Flati, editor-in-chief of the San Diego Journal of Climate & Energy Law, at firstname.lastname@example.org:
- The proposed title of your article and a brief 300-word abstract
- Your CV
- Written acknowledgement that you will attend the symposium on Friday, November 7, 2014, and submit a complete draft of your article to theSan Diego Journal of Climate & Energy Law by Monday, December 8, 2014.
Please submit your proposal by Monday, April 21, 2014.
Tuesday, April 8, 2014
Across the country, law students are registering for their fall courses, and some of them are choosing whether or not to take environmental law. This, then, is a good time to make the case for enrolling in the course. The target of my argument isn’t the student who is determined to make a career in environmental law (and, therefore, the kind of student who actually might read this blog, but never mind that). I’m assuming those students will take a basic environmental law class, and several other related courses as well. Instead, it’s the student with a passing or uncertain interest in the subject.
I think there really are three primary reasons why environmental law remains a course well worth taking.
The continued importance of environmental law practice. A few years ago, many people thought that the environmental law field was primed for expansion, with new climate change laws likely serving as the key driver of the change. That hasn’t happened. On the whole the field doesn’t seem to be growing, and the economic downturn’s impacts on development activity translated into less work for environmental lawyers. But the field also isn’t going away. Environmental due diligence remains a crucial part of almost every commercial real estate transaction and or corporate merger; Clean Water Act and Clean Air Act compliance still generate lots of work; and both governmental and non-governmental enforcement still generate many cases. The environmental law boom of the 1980s will probably never recur, but there still will be work.
The continued relevance of environmental law has implications for students who intend to focus primarily in this area, and it also matters to students who intend to enter other fields. For example, future real estate lawyers, corporate transactional lawyers, energy lawyers, and state or local government lawyers all are likely to encounter environmental law over the course of their careers, and they’ll be stronger within their core practice areas if they have some prior understanding about how environmental law works.
The skills. Among many students, I suspect there’s a belief that environmental law is something of a warm, fuzzy, and esoteric subject—fun to study, but not particularly practical. The reality is nearly the opposite. Environmental law is in large part a course about statutory and regulatory interpretation, and interpreting dense, somewhat technical statutes and rules isn’t warm and fuzzy at all. The course is actually pretty hard work, even though most of us who teach it work hard to make it interesting. But interpreting statutes and regulations forms the core of modern legal practice, and a student who takes environmental law therefore will develop and refine skills that will be useful in fields ranging from tax to immigration.
The importance of the subject matter. One reason that environmental practice isn’t going away is that environmental issues aren’t going away. They might not rise to the top of the general public’s list of concerns. But we breathe air, drink water, and consume natural resources constantly, and all of those activities make us both beneficiaries of environmental protection and contributors to environmental degradation. And if anyone doubts the importance of law to environmental protection, a quick review of this remarkable series of posts ought to provide a compelling reminder that we are surrounded by experiments in the non-development, or non-implementation, of environmental law, and those experiments generally do not go well. Similarly, the 40-year history of environmental law shows that designing law that effectively responds to these problems is no easy task, even if those laws are backed by the best of intentions. We still need people--lots of them--who understand the intricacies of this field.
- Dave Owen
Wednesday, April 2, 2014
Monday, March 31, 2014
Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.
I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here.
I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world.
- Michael Burger
Saturday, March 29, 2014
Wednesday, March 26, 2014
Russia is rapidly becoming a pariah in part of the international community following its inclusion of Crimea within it's territories. The United States and the European Union notably have imposed several sanctions; more recently they agreed to oust Russia from the G-8, a powerful, if informal, economic coalition. Whether Russia's actions violate international law amd whether sanctions will be effective in persuading Russia to undo its deeds are important and significant questions. Much has been written, and will be written, on the issue.
I worry, however, about the impact of these developments on ongoing climate change negotiations. Those who remember the history of Kyoto Protocol's (the Protocol) will recall that Russia ratifiaction was pivotal for it's entry into force. At that point it was largely speculated that Russia joined the Protocol because of two reasons--1) The European Union made its support for Russia joining the World Trade Organization conditional on Russia accepting the Kyoto Protocol, and 2) that Russia was not required to reduce emissions below 1990 levels, because of its economic collapse, and therefore Russia had a significant advantage in participating in Kyoto Protocol's emissions trading scheme. (See e.g. http://news.bbc.co.uk/2/hi/science/nature/4269921.stm).Since then, however, Russia has turned away from the Kyoto Protocol. In 2012, it rejected the Protocol's second commitment period. At the COP meetings in Qatar, Russia with Belarus and Ukraine tried to retain the emission permits, effectively to continue increasing their emissions post-2015. When Russia was unsuccessful in getting all its viewpoints heard, the three countries objected to the procedure and threatened to oppose any 2015 framework that did not clarify the procedure.
The events unfolding in Ukraine may change it...for better of worse. If the new Ukrainian government refuses to cooperate with Russia, Russia will lose an ally in its climate change negotiations. Even so, it may not help resolve the problem of Russian isolation, unless all nations boycott oil from Russia; this is unlikely to happen. The biggest question is whether Russia, which has so far taken sanctions in its stride, may simply step out of the negotiations unless it has its way--which is unlikely given the general mood in the United States and the European Union. It is perhaps time to think what the Russia-Crimea issue means to climate change.
PACE UNIVERSITY SCHOOL OF LAW
2014 LLOYD K. GARRISON LECTURE
March 26, 2014
David Sive (1922-2014) and Joseph Sax (1936-2014)
In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2nd 608 (2d Cir., 1965). Known as the “Storm King” case, this ruling inaugurated what we today call environmental law. Two individuals above all others, guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives are intertwined.
Pace’s faculty insisted that David Sive give the inaugural Garrison lecture. David did so, but insisted that his friend and fellow legal pioneer for the stewardship of nature, Prof. Joseph Sax, deliver the second lecture in the series. Lloyd had passed away four years before. It was timely to commemorate Lloyd’s remarkable civic career and his seminal contribution to the birth of contemporary environmental law in the battle to safeguard “Storm King” mountain. A descendent of abolitionist William Lloyd Garrison, Lloyd was a pre-eminent civil liberties attorney, former Dean of Wisconsin Law School, and a leader of the Bar in New York, who had been called to service on many governing boards for federal agencies under three presidents. I came to know Lloyd before his passing, conferring with him on historic preservation law matters.
When the Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands had inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn engendered the birth of America’s conservation movement of the late 19th century. The Hudson was also instrumental to the birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces. Here above Storm King George Washington assembled soldiers from across the freed colonies for their final encampment before being demobilized. The Army’s West Point Military Academy overlooks the River and Storm King.
Con Ed had assembled the political and legal power to secure approvals for its plan. A small coalition of citizens, led by Francis Reese and others, persuaded Lloyd to represent their cause: preserve Storm King. He served as legal counsel to the Scenic Hudson Preservation Conference. With his able associate, Albert K. Butzel, who delivered a Garrison lecture in 2010, Lloyd Garrison won a landmark decision of the US Court of Appeals granting the citizens standing, reversing the FPC’s grant of a license to Con Ed., and determining that aesthetics, history and nature conservation had equal standing to economic interest, and must be considered before the FPC could lawfully act.
Among those who joined the Scenic Hudson Preservation Conference’s legal battle was the Atlantic Chapter of the Sierra Club. David Sive and Alfred Forsythe had formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who felt the Club belonged there, and worried the Club would be stretched too thing. Dave chaired the Chapter. In those days, I recall how its Conservation Committee debated issues from Maine to Florida. The Chapter’s center was with Sive in New York, campaigning for example to save Olana, the Hudson painter Frederick Church’s home and studio. Having the prestige of the Sierra Club meant a lot to the Storm King cause. Sive represented the Sierra Club in its intervention in the Storm King case.
While litigation over Storm King battled on, David Sive also agreed to represent a similar grassroots community movement, the Citizens Committee for the Hudson Valley v. Volpe. Federal Transportation Secretary John Volpe had approved siting a super- highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, located there to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the Tappan Zee Bridge. Without the benefit of any environmental statutes, which would only be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, Sive prevailed against the State and federal defendants. Upheld on appeal, Congress also ended up backing the citizens. Pace’s Dean Emeritus, then Congressman Richard L. Ottinger successfully blocked a bill intended to overturn the court decisions. Sive had won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved this lovely part of the Tappan Zee, Kingsland Point Park, beaches and marinas, a rare location where a person can reach the River’s banks without being barred by the NY Central’s railroad tracks. Had Joseph Sax’s public trust scholarship been published a decade earlier, Sive might have relied on that legal doctrine as well.
[Parenthetically, I served as Dave Sive’s law clerk in 1969 on the appeal of the Hudson River Expressway case, and every summer since 1972 I have swum in the Hudson where the highway would have been built. My daughters learned to swim there, and my grandchildren and I swim there still.]
Public interest litigation to safeguard the environment was born in these cases. Citizen outrage about pollution and degradation of nature was then wide-spread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive and Joseph Sax were prominent among participants. Their essential conclusion was that “environmental law” needed to exist. Like Sive, Sax , while a young professor at the University of Colorado, had helped the Sierra Club opposing development of the Colorado River, and had become involved in a legal campaign, launched by Victor Yannaconne, to ban DDT in the wake of Rachael Carson’s Silent Spring. At Airlie House, I was privileged to listen to Sive and Sax debate strategies about how to expand beyond the scope of administrative legal remedies to forge this new field of “environmental” law. Participants took heart from the civil rights movement, and argued that if the NAACP Legal Defense Fund could engage courts to remake the law against all odds, so could those who defended the environment. They left that conference motivated to act.
On December 1, 1970, Congress enacted the National Environmental Policy Act, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). In Michigan, Joe Sax wrote and saw enacted the Michigan Environmental Act of 1970, with provisions for citizen access to justice to enforce environmental rights. In the wake of both NEPA and his Michigan legislation, Joe Sax articulated and published doctrinal and civic foundations to support public interest litigation and define the environmental duties government owed its citizens. His landmark book, defending the Environment: A Strategy for Citizen Action appeared in 1971. The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA. Dave Sive and Joe Sax emerged as the environmental leaders on this Committee, which was chaired by US Attorney Whitney North Seymour (SDNY). CEQ issued its NEPA ”guidelines” on recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment. Nicholas Yost later codified the case law for CEQ in 40 CFR Part 1500.
Dave Sive, withhis law firm, Sive Paget & Riesel, went on to represent citizens in a number of NEPA cases, winning rulings of first impression. Sive was a founder of Natural Resources Defense Council (NRDC), which became the pre-eminent champion of public environmental rights before the courts. Sive also led the establishment of the leading environmental lobby group in Albany, now known as Environmental Advocates, and campaigned for stronger State legislation. To continue the Airlie House conference precedent, Sive institutionalized the professional study of environmental law as a discipline through creation of the Environmental Law Institute (ELI). With ELI and ALI-ABA, he launched nation-wide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. On becoming a Professor a Pace, Dave helped launch its Doctor of Juridical Sciences degree, mentoring Dr. Robert Goldstein in his thesis; Robert is now a Professor in the Law Department at West Point. He vetted Prof. Robert F. Kennedy Jr.’s exposé of mismanagement in the NYC Catskill Watershed; Bobby Kennedy’s work launched the much-remarked regime of ecosystem services between New York City and Catskill communities. Sive, honored as a Member of the IUCN Commission on Environmental Law, was celebrated by its long-time Chairman, Wolfgang E. Burhenne, as being a legend in his time.
David Sive epitomized the best of what makes law a learned profession. He was a true role model. Michael J. Walker, director of the US EPA’s National Enforcement Training Institute, wrote last March 24th of his hope that each of the 54 new law clerks being trained at EPA this week ”will continue the work that Mr. Sive began 50 years ago. We will begin with a ‘thank you’ to a leader and patriarch in the environmental movement: David Sive.”
Joe Sax went on to become America’s pre-eminent professor of environmental law. In that fertile year, 1970, he also had published “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (68 Mich. L. Rev. 47). His teaching and research in water law brought him perceptions about the public trust doctrine hidden to others. His article inspired a generation of law professors and public interest litigators who engaged the courts to protect public trust interests, especially access to public shores along rivers like the Hudson. The idea of legally protected pubic rights , which citizens can defend, is fundamental to environmental law. Sax’s work inspired Bob Boyle and other founders of the Hudson Riverkeeper, and in turn the world-wide Waterkeeper movement. Pace’s Environmental Litigation Clinic recently won a major public trust case in New York State courts. Law schools nation-wide are indebted to Joe Sax for his inspired scholarship and vision. In his prolific career, Joe’s many further books and articles engaged the minds of environmental law professors across America. Internationally, he was a laureate of the Elizabeth Haub Prize in Environmental Law, and lectured to law professors of the IUCN Academy of Environmental Law its annual Colloquium in Sydney Australia, in 2004. His ideas won a global audience. When India’s Supreme Court recognized the public trust doctrine in that nation, the research of Prof. Joseph Sax was evident.
Looking back at his four decades of cultivating environmental law in 2007, Sax reflected on the duty of the state to protect the people’s common heritage: “Only when this precept is expanded into a general principle of our domestic law governing all out natural resources will we be able to say we have truly implanted environmental jurisprudence into our legal system.” When Joe passed, the law professors’ Internet list serve buzzed with praise for all his contributions. He mentored a generation of law professors. Another Garrison lecturer, Prof. Oliver Houck, observed : “In late l969 I heard Joe Sax and David Sive speak in DC. Like watching dawn break. I've never looked back ...”
David and Joe were both humble and self-effacing men. They would have been pleased to be celebrated together, each basking in the earned accolades of the other. That was their demeanor when they were here together with the first 10 Garrison laureates, who were assembled at Pace in 2005 by Prof. Robert Goldstein. John Cruden, President of ELI, last March 20th observed: “I have now had the opportunity, in three separate events, to pay homage to Joe and David. It is a rare audience that people do not know one or both, and everyone has heard of them. Each time I speak about them, stories follow. Joe was an inspiration for me, David a mentor. Their legacy is golden, but thinking about them both challenges me to do more.”
The ripples from their professional work have spread far and wide. It is fair to observe that the reforms that Sive and Sax engendered in time produced Principle 10 of the Declaration of Rio de Janeiro on Environment and Development, adopted by the UN 1992 Earth Summit. This principle embodies many of the reforms that they urged in the 1970s and beyond: rights of access to environmental information, to pubic participation in environmental decision-making and to access to the courts. These are today recognized as global norms. The combined legacy of their lives is global.
We are honored that David’s wife, Mary Sive, a great outdoors woman, and his daughter Helen, are with us here today. In his last years, when he was able, Dave enjoyed attending the Garrison lectures. On behalf of us all, may I thank the Pace Law Library and Environmental Law Program staff, especially Leslie Crincoli and Prof. Lin Harmon, for the commemorative exhibits that accompany this 2014 lecture, honoring Joe and Dave. David Sive would have been pleased to have been here today to welcome Prof. J.B. Ruhl to deliver the 2014 Garrison lecture. J.B. is a pre-eminent environmental law scholar, and is very much the heir to Joe Sax’s scholarly legacy of innovation. This year especially, the spirit of Sive and Sax infuses the Garrison Lecture.
Nicholas A. Robinson
March 26, 2014
 See the 1971 CEQ Annual Report, Appendix, Membership of Legal Advisory Committee, at p. 355.
 Principle 10 of the Declaration of Rio de Janeiro on Environment and Development provides: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the enviro9nment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” This norm today is embodied in national statutes and constitutions around the world, as well as in a number of treaties.