Tuesday, April 23, 2013
As we drove to school a couple days ago, we were listening to an NPR story about the economy. The reporter was summing up the situations of various regions of the world. As to Europe, the reporter said something like “Europe doesn’t look great either.”
Now my daughter knows a thing or two about Europe. We lived in Spain last year for 6 months. From the backseat, she speaks up in a very deliberate and confident voice:
“Of course Europe doesn’t look great -– there are cigarettes all over the ground!”
- Lesley McAllister
This past week I took a trip to Toronto via Cleveland (long story) to attend the Urban Forests, Political Ecologies Conference (which was a truly fantastic conference). In addition to seeing the Cuyahoga River for the first time (a river that makes its way into every intro to environmental law course), I got to drive through the city of Euclid, Ohio. I felt as if I was living in a case book! Euclid, as many of you know, became famous in the case of Euclid vs. Ambler Realty, where the Supreme Court, for the first time, upheld a municipality's authority to enact zoning regulations. These regulations were ultimately an exercise of the police power intended to preempt nuisance claims by separating well-recognized nuisances (like industry) from those who might bring claims. Well, as I traveled down the main drag back toward the interstate, what filled the windshield of my car but one of the largest windmills in North America. That's right, Euclid was at it again. Innovating. From the same grid upon which modern zoning was built, you could now view a growing source of alternative energy in the U.S. I snapped a picture, shown to the right, and as you can see this is no slight change to the Euclid skyline (it appears, however, that Euclid has not mandated underground powerlines through its zoning power).
The mayor of Euclid hopes this is the beginning of Euclid's renewable energy revolution, and Euclid has indeed followed up by placing solar panels on city buildings. The turbine is poised over Lincoln Electric's headquarters and is expected to cut a half a million dollars from Lincoln's annual electric bill. Of course, just as with complaints about zoning regulations in 1926, the city has received complaints about the turbine obscuring views of Lake Erie. But overall, residents seem quite happy with the attention the windmill brings, and with the potential for future investment in windmill manufacturing for a region in great need of re-investment in growth industries.
Of course, the case of the city of Euclid provides an interesting metaphor for the broader intersection between zoning and renewable energy. As Professor Troy Rule has explored in many fine articles, municipalities may often use zoning authority to keep renewable energy projects out of their municipal limits. In this way, the city of Euclid provides a wonderful example of a city embracing such projects - and not just a project on the fringe of the city limits, but one that can be seen from pretty much any street in downtown. Hopefully more municipalities will embrace Euclid's vision of what is not a nuisance in a time when renewable energy is in need of major adoption across the 88,000 or so subnational governments across the nation. And maybe they can do something about those powerlines too.
- Blake Hudson
Monday, April 22, 2013
We’re happy to introduce our newest blogger. Todd Aagaard attended the University of Michigan’s School of Natural Resources and the Environment and Michigan Law School, where he was the editor-in-chief of the Michigan Law Review, and clerked for Judge Guido Calabresi. He then spent eight years at the United States Department of Justice, where, last I checked, his former colleagues are still in mourning over his departure. He now is an associate professor at Villanova, where he teaches and writes on a variety of environmental law topics.
Todd will be joining us for a three-month stint, which is part of a series of changes coming to the blog. In the future, we anticipate that some of our editors will remain indefinitely, while others will rotate through for shorter visits.-Dave Owen
This afternoon, out of the blue, my four-year-old daughter said, "Daddy, today is Earth Day!"
"Oh," I said.
"I told kids at school about pollution. But I didn't have time to talk about you."
"What did you tell them about pollution?"
"Pollution is..." she paused. "Pollution is... endangered species!"
Let's all hope.
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Wednesday, April 17, 2013
The electric utility industry often complains that renewable energy proponents don’t pay enough attention to the intermittency of renewable resources. A common refrain is “the sun doesn’t always shine and the wind doesn’t always blow.” The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy.
A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on. In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy. The scenario includes no coal-fired generation.
The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that’s needed for sophisticated grid operators to balance supply and demand – namely, several hours ahead of time. It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches.
So it seems we can build electric power systems that bank on the reliability of the sun and the wind. A new refrain could be “the sun’ll come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun!” and we can recall that our forebears didn’t name places Windy Mountain, Windy Plains, and the Windy City for nothing.
- Lesley McAllister
Tuesday, April 16, 2013
Perhaps I should not admit it, but I used the picture below in my environmental law class this semester. I showed it after we had had a pretty heavy discussion on the science of climate change, with the thought that it might bring some levity to an otherwise difficult topic. While no one suggested it was inappropriate, I later found myself regretting it. A female professor might get away with it, but I think a male professor could really catch some flack!
Monday, April 15, 2013
Fifty years ago today, in Dugan v. Rank, 372 U.S. 609 (1963) the United Supreme Court did something it has not done since: it issued a decision in a takings case involving water allocation.
That statement might seem surprising. The Court has decided many takings cases in the last five decades. Those decisions have addressed wetlands (Palazzolo), floodplains (Dollan, First English), lakes (Tahoe Sierra Preservation Council), and, with particular frequency, beaches (Nollan, Lucas, Stop the Beach Renourishment). This past term, a flooding case and a wetlands case both occupied the docket. The Court, in short, has shown no lack of interest in water. And in that same period, water allocation controversies have produced a tremendous amount of litigation, some of it involving the takings clause. But not one of the resulting cases has found its way to the Supreme Court.
Is this a problem? Ten years ago, many water lawyers would have said so. In the absence of guidance from the Supreme Court, takings plaintiffs pressed some rather aggressive theories about how the takings clause should apply to regulation of water rights. Most notoriously, in Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), they argued, successfully, that a regulatory restriction on water use should be analyzed as a physical taking. The case, and a host of copycat claims, created a fear, widely shared among the many people (including me) who strongly believe in government regulation of water use, that caselaw at the intersection of water rights and takings was in danger of turning seriously astray. And in the wake of the Court’s Tahoe-Sierra Preservation Council decision—and with Justice O’Connor the likely deciding vote—the Supreme Court seemed like a promising forum for those seeking a change in course.
Now, however, the picture looks different. In surface water cases, the Tulare Lake case has never gained a following. Only one other decision (Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed.Cir. 2008)) has adopted a physical takings framework for a regulatory restriction, and that decision involved a rather complicated and unique fact pattern (and the plaintiffs still eventually lost). In groundwater cases, I recently discovered, courts have uniformly rejected that more categorical approach. Many questions remain about the application of takings doctrine to water use allocation, and some academic debate lingers, but most courts at least seem to be moving toward a view that the regulatory takings doctrines the Court has developed for land will serve equally well for water.
If that trend continues, there may be little need for Supreme Court intervention. So, on the fiftieth birthday of Dugan v. Rank, perhaps water lawyers can raise a toast to judicial restraint, lack of interest, fear of the complexities of water law, or whatever else it is that has kept water rights out of the Supreme Court.
Last Saturday I had the pleasure of attending the Better Block Baton Rouge event on Government Street here in Baton Rouge. As you can see from the attached images, it was a lively "demonstration project . . . exploring possibilities for transforming the corridor into a vibrant and safe destination for pedestrians and cyclists, while maintaining quality road design that optimizes traffic flow and access to businesses." I bike to work, about 7 miles each way. It takes roughly the same amount of time as driving, I do not have to pay for campus parking, and when I get home I am done with my exercise for the day. I do not ride on the main corridors here in Baton Rouge, however, because it is so very dangerous. As the Louisiana Center for Planning Excellence reports, while Baton Rouge is the worst city of its size in America for traffic congestion, Louisiana has the worst drivers in the nation and ranks 49th (second worst) for bicycle and pedestrian fatalities. Louisiana is also the fifth most obese state in the nation. Thus, a city with a great need for more cycling also happens to be one of the more dangerous cities in which to cycle.
Programs like Better Block BR are crucial to raise awareness of what our streets could look like if they were re-designed to take into account a broader suite of societal values than the status quo: more walkable, cycle-able cities, aesthetic benefits, improved traffic flows, greater access to community amenities, environmental benefits, health benefits, among a variety of other positives. I applaud the mayor's office and other organizers for putting on this program and certainly will be looking for opportunities to help Baton Rogue become a more bike and pedestrian friendly city. My life and the lives of many other cyclists may depend upon it.
- Blake Hudson
Friday, April 12, 2013
Yesterday, I enjoyed discussing a new paper I've written about solar subsidies with Professor Ann Carlson’s Climate Change and Energy Law Workshop class at UCLA. In past years, I’ve participated in similar workshop classes at Georgetown and Stanford, but this one worked particularly well because the students were required to write substantial comment papers. I received their comment papers several days before my visit, and they were generally well written and helpful. During the class, I tried my best to answer all their great questions.
I wonder if this type of class could be successful using virtual visits. Ann mentioned that the students really enjoy the opportunity to engage in peer-like communication with professors on cutting-edge academic work, but the travel costs of ten presenters (most from far away places) make it an expensive course for a law school to run. It certainly wouldn’t be as fun for us profs (I really enjoyed dinner afterwards!), but could students still get a lot out of it?
- Lesley McAllister
Thursday, April 11, 2013
On Tuesday, the New York Times published an article that all academics--particularly new ones--probably should read. The article discusses the increasing presence of so-called "predatory" academic journals and conferences. According to the Times, these journals and conferences generally adopt names that sound respectable and legitimate, but their peer review processes are minimal, and they often hound authors for exorbitant and undisclosed fees once they've agreed to publish. They also solicit articles aggressively, which may explain the odd-sounding conference and publication invitations I routinely receive.
Among other reactions, the article made me appreciate some things about the much-maligned system of publication through law reviews. The placement process may be the polar opposite of double-blind review, and the absence of peer review sometimes allows shoddy work to appear in prominent places (of course, I doubt peer review fully prevents that from occurring). But at least when we are asked to participate in a law review's symposium, we don't have to wonder what sort of institution the invitation is coming from. And when we get publication offers, we can be pretty confident that the people working on our article will be striving to make it better and learning something from the experience, not attempting to gouge money from us or our institutions.
Wednesday, April 10, 2013
I took my daughter to a birthday party for one of her school friends last weekend, and I got in a discussion with the birthday girl’s dad about climate change. It started when the dad said something like “if weathermen can’t even predict the weather tomorrow, how can scientists say anything about climate change.”
Of course, this wasn’t the first time I had heard such a remark. But I felt good about the effectiveness of my response, so I thought I’d share it. It went something like this (please note that I don't claim originality; I'm sure I heard it elsewhere but I don't know where):
"Consider a coin toss. If I ask you to bet me $1,000 that the toss will come up heads, how confident would you feel about winning the bet? (Not very.)
Now consider 1,000 coin tosses. If I ask you to bet me $1,000 that about half of the tosses will come up heads, how confident would you feel about winning the bet? (Pretty good.)
One coin toss is like predicting the weather. A thousand coin tosses is like predicting climate. Climate prediction is based on many measurements over many locations over many years."
I doubt I changed his mind about climate change, but I think he appreciated the point. Also, it felt like the right level of conversation for that social setting. Perhaps my daughter will still be invited to his daughter’s birthday party next year!
- Lesley McAllister
Thursday, April 4, 2013
Three weeks ago, a federal district court in Texas issued an important ESA decision. The Aransas Project v. Shaw also is a very long decision—124 pages, to be exact—so I’ve been a bit slow to get a blog post up. Despite its daunting length, the case is important reading for anyone interested in water management or the ESA. It’s also a rather intriguing case study of the use—both successful and badly botched—of expert testimony in environmental litigation.
The case arises out of water management controversies in Texas. According to the plaintiffs, the Texas Commission on Environmental Quality and its fellow defendants had taken whooping cranes in violation of section 9 of the Endangered Species Act. They had done this, the plaintiffs argued, by allowing excessive water withdrawals from the river systems that feed into the Aransas National Wildlife Refuge, which provides vital whooping crane habitat. The court agreed, enjoined the issuance of new water permits, and ordered the defendants to prepare a habitat conservation plan and seek an incidental take permit.
That’s a very interesting outcome, because successful section 9 actions against water managers don’t seem to be particularly common. I haven’t done any sort of rigorous survey, but my impression, based on working as a water lawyer and then on my academic research into related ESA questions, is that environmental groups have gained much more leverage through ESA section 7. Indeed, in the Southeast’s longstanding Apalachicola-Chattahoochee-Flint controversy, similar take claims brought against upstream water managers failed. See Alabama v. Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006).
So could this case signal the emergence of a new front in the ESA/water allocation wars? My suspicion is that several factors will make these plaintiffs’ success difficult to replicate. In no particular order, those factors are:
The extraordinary level of data available to the plaintiffs in this case. Reading the opinion made me wonder if these whooping cranes are one of the most carefully observed wild animal populations on earth. As the court describes, scientists have been counting whooping cranes since the 1950s. Since the early 1980s, scientists—including one of the plaintiffs’ experts—have conducted dozens of monitoring flights every year. The resulting level of information is exceptional. Usually population biologists must rely on some combination of observational data (usually limited), proxy indicators like habitat conditions, and computer-based modeling to assess the status of a population. The resulting uncertainties can limit plaintiffs’ ability to demonstrate causal relationships with enough certainty to support a successful ESA section 9 claim. With whooping cranes, the circumstances are quite different.
The imbalance of experts. The plaintiffs had an impressive array of experts on their side. Here’s the court’s description:
At trial, TAP presented seventeen witnesses, ten of whom were experts, GBRA eight; SARA one: and TCEQ two. As will be discussed in more detail later, TAP’s experts were world renowned in their respective fields. Several of TAP’s witnesses hold endowed chairs at prestigious universities, some are MacArthur Fellows, all have published numerous scientific papers in respected journals. Indeed, one witness, Dr. Ronald Sass, is a shared recipient of the 2007 Nobel Peace Prize for his environmental work. TAP’s crane experts… have years of study in the field and have devoted their time and energies to the survival of the AWB species. All of TAP’s experts were accepted as such and the Court finds their testimonies compelling and credible.
The court had less laudatory things to say about the defendants’ experts. For example:
Dr. Slack did not personally spend any significant amount of time in the field, averaging one day per year over the past fifteen years. Contrary to the scientific literature, Dr. Slack testified that cranes did not need freshwater because they had functioning supraorbital salt glands which allowed them to secrete excess salt. However, when questioned further by the Court, Dr. Slack admitted that he had no observational basis for this statement, he had not reviewed literature on cranes and freshwater, and that he “just made it up.” (record citations omitted)
The level of judicial interest. From the outset, the narrative structure of the opinion (yes, it does have a narrative structure) strongly suggests that someone in the court’s chambers cared very deeply about this case, and probably also about whooping cranes. Before getting into the procedural history, relevant law, or even the identities of the parties, the opinion spends several pages describing the whooping crane die-off, much like a detective novel beginning with the key murder. But the real tip-off comes later, in a remarkable passage debunking the work of one of the aforementioned Dr. Slack’s graduate students:
[A key defense report] used a report by Dr. Slack’s graduate student Danielle Greer whose conclusions to the preferred food of whooping cranes was (sic) based on 90 plus hours of video of three crane areas. The Court watched all of the videos and finds that they were either too blurred to see anything or non-demonstrative of any habit, feeding or otherwise.
So what does this all suggest? If I’m reading correctly, it shows that when plaintiffs have extraordinarily good monitoring data, an all-star team of experts, poorly prepared experts on the other side, and a judicial chambers where someone—perhaps the judge, more likely a clerk—cares so deeply that she is willing to watch 90 hours of blurry footage of whooping cranes, they can win an ESA section 9 case against upstream water managers. Absent those circumstances, the challenge might be a bit harder. That doesn’t mean there won’t be other cases like this. Conflicts between water withdrawals and the needs of endangered fish and wildlife probably aren’t going away any time soon. But the case does illustrate the level of scientific and legal work necessary for plaintiffs to prevail.
Wednesday, March 27, 2013
This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.)
My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid. As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific. Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home. This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity.
(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)
The Long Journey Home Begins. In departing Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland. It was a long trip, but the transitioning away from China began immediately. Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed. Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down. Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis. We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor. We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.
And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy.
On our second or day back, I went grocery shopping with my four-year old son. I was mentally prepared for how psychologically fraught this might be. I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time. I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption. I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused. Everything was so sterilized, and there was just so much of it all. No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything.
I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands). It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.
I shut my eyes, centered my breathing, and considered how much we wanted those strawberries. And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping. Like I had never left. In fact, I knew exactly what to do. I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter. Suddenly, it wasn’t so strange after all.
Which became its own haunting experience: was all this excess really my personal norm?? So help me, it was. This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore. But why didn’t they know how abnormal it really was? Don’t they know what the rest of the world eats and where they find it? That most people alive today (or at any time in history) could never imagine a place like this? Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all? Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?
Strangers in Our Own Land. Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing.
It was hard to get over how clean the world suddenly seemed. Like a movie set, because it couldn’t really possibly be that clean. The streets and houses are clean. The air is brilliant; sweeter than I had imagined. Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight. We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure. Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates. But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.
There is not so much litter here in the U.S., and not so much dust. We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China. (No exaggeration: our East China home dusted in the morning was saturated again by evening. But then again, we all know what dust is mostly made of—dead skin cells. There are more than a billion people crowded along China’s East Coast; you can do the math.) Nature in the U.S. is spectacular. The grass really is greener; the sky improbably blue. The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it. And yet we also have to remember not to look directly at the sun, as we so often could in China.
This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky. But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood! We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school). And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance.
My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling. But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed. At first, the teachers didn’t know what to do with his hesitation to act independently. “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!” After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition. And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.
Cultural Pride and Cultural Shame. Public safety and sanitation is different here. It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along. I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China. I no longer worry about giving my child medicine when he is sick. That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown. I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.
But there are also moments of immense cultural pride. I cannot boast enough about American tap water, with which we are all hopelessly in love. Drinking directly from the sink never gets old, and Oregon water is especially heavenly. My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried. We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water. Nothing! (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)
Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water. It feels excessively wasteful. It boggles my mind to see people using it to sprinkler lawns and wash cars. “No, no,” I think, “are you crazy? You could drink that!” But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash. Which is obviously insane, especially in the arid West. I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore.
At Home in America. Our neighborhood is lovely with trees and grass and wildlife, but strange with people. It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car. If you don’t walk a dog, it’s easy to never see neighbors face to face. In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers. Public spaces are alive with community in China, but here, we are much more isolated. We live close to our neighbors, but with little random interaction. With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience.
Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points. Public spaces are so empty by comparison. The country is so empty, with vast unpopulated tracts of land. “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind. One student has his own room for the first time in his life—and he hates it. There is nobody to talk to. Nobody to care if you are even there or not.
While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first. But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore. A little dirt won’t hurt, we tell ourselves; how bad could that floor really be? (There’s barely even any dust!) And for that matter, why bother with organic? Why sweat the preservatives? After our year abroad, we have been fully absolved of the illusion that our bodies are temples.
But our house—goodness gracious—is ridiculously, shamefully big. I was deeply embarrassed when my Chinese students came to visit us in December. I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays. But at the same time, I cringed at the thought of showing them where I live. I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives. True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.
That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it. It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone. I returned from China with bursitis in my hips because Chinese beds are so hard. But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests. There is wall-to-wall carpeting, with padding beneath. On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable. Embarrassingly, my body wilted into the cushions like a crying child to her mother. My fallen arches stopped screaming about the constant concrete floor underfoot.
Of course, this too is purely a matter of culture. One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft. Everything in the US is so unbearably soft, he complained—even the floors are soft! “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.
Freedoms for Granted. The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet. Tiananmen. Terrorism. When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration. What our parents tried to teach us about our roles in the world.
My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself. In the wake of Tiananmen, these were survival instructions. They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background. Then they asked me what my parents taught me while I was growing up. I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary. We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.
In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague. I could write freely. I didn’t have to be purposely ambiguous about connecting names with events or statements. I could make full sentences rather than mnemonics. For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing. I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.
I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home. After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely. My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email. But now, nothing I said could hurt anyone anymore. I could relax! But no, I couldn’t relax. It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.
Between Worlds. So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left. Supermarkets aside, it was remarkably easy to rejoin American culture. Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules). I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time. I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away. I knew how to operate American culture like an expert. It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside.
Yet reverse culture shock sneaks up on you. A few weeks after we got back, I fell into what I can only describe as a brief but intense depression. I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to. I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer. Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home!
But these were guilty pleasures, most, because of course life is nicer in the first world. Back now to that dizzy place. How to feel about all this? What about those we left behind? So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind.
Then again, I know I’m not really leaving it all behind. Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now.
Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed. As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college. As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year. He was so proud to be Chinese again, if only for the day. The next day, he was happy to be an American again, romping freely around the neighborhood playground. So yes, he is a clearly a child of two worlds now.
And in some smaller way, I guess I am too.
Monday, March 25, 2013
Sally Jewell's nomination to become Interior Secretary cleared the Senate Energy and Natural Resources Committee.
SCOTUS handed down Decker v. Northwest Environmental Defense Center (U.S. No. 11-338), reversing the 9th Circuit in upholding EPA's interpretation that channelilzed stormwater runoff from logging is not a discharge triggering the need to obtain a CWA permit (opinion here).
SCOTUS granted cert in US Forest Service v. Pacific River Council, U.S. No. 12-623.
Tuesday, March 19, 2013
"California in the Spotlight: Successes and Challenges in Climate Change Law"
Proposals due: Monday, March 25, 2013
On Friday, November 8, 2013, the University of San Diego School of Law will host its Fifth Annual Climate & Energy Law Symposium. With this Call for Proposals, you are invited to submit the title and abstract of an article that you would be able to present at the Symposium and publish in the fifth volume of the San Diego Journal of Climate & Energy Law. If your proposal is selected, all your expenses to attend the Symposium would be paid, and your completed article would be due to the Journal’s editors by Monday, December 16, 2013. The agendas and webcasts of past symposia are available here.
The theme of our 2013 Climate & Energy Law Symposium is “California in the Spotlight: Successes and Challenges in Climate Change Law.” Among U.S. states, California has pursued the most comprehensive and ambitious approach to reducing greenhouse gas emissions. California’s approach is multi-sectoral, with laws designed to transform not just electricity generation but also transportation, industry, and land use. Also, California has embraced regulatory innovation through a robust combination of market and non-market based regulatory instruments.
At the University of San Diego’s Fifth Annual Climate & Energy Law Symposium, academic and policy experts will analyze and assess three core aspects of California’s approach to climate change mitigation. First, California has implemented an economy-wide cap-and-trade program. How well does cap and trade work? What are its weaknesses and strengths in comparison to alternative emissions reduction policies? Should it be a regulatory instrument of choice for other states and countries? Second, California is aggressively pursuing emissions reductions in the transportation sector. What is the outlook for zero emission vehicles and the policies to promote them? Should the state’s low-carbon fuel standard survive judicial scrutiny? What prospects remain for a national low-carbon fuel standard? Third, California remains a leader in promoting low-carbon electricity, particularly solar electricity. How have the state’s utilities complied with the Renewable Portfolio Standard requiring that they source 33% of their electricity from renewable sources by 2020? What are the arguments for and against national policies that mandate such goals? What other state, national, and international policies should be implemented to promote low-carbon electricity?
All article proposals related to these broad issues in climate change mitigation 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 to Joshua Dennis, editor-in-chief of the San Diego Journal of Climate & Energy Law, at firstname.lastname@example.org:
(1) The proposed title of your article and a one- to three-paragraph abstract;
(2) A link to or copy of your CV; and
(3) Confirmation that you would be available to attend the Symposium on Friday, November 8, 2013, and that you can commit to submitting a complete draft of your associated article for publication to the San Diego Journal of Climate & Energy Law by Monday, December 16, 2013.
Proposals should be submitted by Monday, March 25, 2013. We look forward to hearing from you!
The University of San Diego Climate & Energy Law Symposium is co-hosted by the Energy Policy Initiatives Center (EPIC) and the San Diego Journal of Climate & Energy Law. For information about past Symposia, please visit:
First Annual Climate & Energy Law Symposium (2009): Federal Preemption or State Prerogative: California in the Face of National Climate Policy
Second Annual Climate & Energy Law Symposium (2010): Next-Generation Regulation: Instrument Choice in Climate Law
Third Annual Climate & Energy Law Symposium (2011): Advancing a Clean Energy Future
Fourth Annual Climate & Energy Law Symposium (2012): Law in a Distributed Energy Future
- Lesley McAllister
Sunday, March 17, 2013
- Many new species now have protection under the Convention on International Trade in Endangered Species.
- A solar industry trade group reported that U.S. sales were up 76% in 2012.
- According to EPA, the fuel economy of the U.S motor vehicle fleet increased by 1.4 mpg in 2012.
- Lake Erie, once a poster child for environmental restoration, is in trouble again. Great story here.
- A federal district court in Texas held (link goes to a long PDF document) that water managers had illegally taken whooping cranes by allowing depletion of the freshwater flows that sustained the cranes' habitat.
Sunday, March 10, 2013
The U.S. State Department released a Draft Supplemental Environmental Impact Statement for Keystone XL (full text available here). The draft finds that the approval or denial of KXL is unlikely to significantly impact the rate of development of the oil sands or the continued demand for heavy crude oil in the United States. Concerned environmentalists fear this is a sign that the White House will approve KXL.
A University of California study predicts that climate change will make commercial shipping possible from North America to Russia or Asia over the North Pole by the middle of the century (the published scientific article is here).
President Obama nominated Gina McCarthy to lead EPA. The nomination was generally well-received by the environmental community. See, for example, this perspective by Frances Beineke of the Natural Resources Defense Council.
A new study published in Science extends the "hockey stick" graph of temperature change back an additional 9,000 years (from the 2,000 years in the original study by Mann.) As the new study's author states, the data show that "temperatures increased in the last hundred years as much as they had cooled in the last six or seven thousand." In short, the rate of warming in the past 100 years is unprecendented in the previous 11,000.
Thursday, March 7, 2013
Last week, the Federal Circuit released another major decision in Casitas Municipal Water District v. United States. The decision brings an apparent end to a long legal saga. Broadly speaking, the litigation addressed the complex three-way intersection between the Endangered Species Act, the 5th Amendment of the United States Constitution, and water law. In this latest round, traditional water law took center stage. They key question was whether Casitas actually held property rights in the water that was diverted away from its intake canal (the court's answer was no). Answering that question compelled the Court of Claims and then, on appeal, the Federal Circuit to consider the basic elements of an appropriative right.
I think that makes the case something of a throwback. Water law casebooks devote many of their pages to explaining the basic parameters of appropriative rights, and years ago, that may well have been a recurring litigation question. But in my four years as a practicing water lawyer, those kinds of questions hardly ever came up. My firm’s water cases raised issues under the Endangered Species Act, the Federal Power Act, takings doctrine, and, with particular frequency, the California Environmental Quality Act (among other laws). And, of course, we spent many hours on civil procedure. But I hardly ever worked on cases involving the nuances of prior appropriation doctrine, and therefore spent little time with the issues that form the traditional core of a water law curriculum. Based on my narrow experience, at least, the Casitas decision appears to be an intriguing anomaly.
That does not mean those issues are irrelevant. In California, the relatively junior status of some key institutional players—Metropolitan Water District and Westlands Water District, for example—has enormous implications for their political and legal strategies. Priority, in other words, still has a foundational influence on western water management. But that doesn’t mean it’s a key litigation issue. And if it isn’t, that raises some questions about the ways we now teach water law.
But were my experiences representative of modern water law practice? Although I’ve long been curious, I really don’t know the answer to that question. So if any of our readers are practicing water lawyers, or know practicing water lawyers well, I’d love to hear what they’re spending most of their time doing these days. Do the traditional rules of prior appropriation—or, in the east, riparian doctrine—still form a key component of water law practice? Or have you found, as I found, the primary issues to arise from the application of statutory environmental laws to water use?
Wednesday, March 6, 2013
In all President Obama’s recent pronouncements about climate change, he has couched his call for action in a concern for future generations.
“But for the sake of our children and our future, we must do more to combat climate change.”
- State of the Union Address (February 12, 2013)
“We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”
- Inaugural Address (January 21, 2013)
"We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet."
- Acceptance speech (November 7, 2013)
And, Obama’s not the only public figure saying it. In January, World Bank President Jim Yong Kim wrote in a Washington Post op-ed that “If there is no action soon, the future will become bleak.”
So why doesn’t this argument sway more Americans to favor swift and strong action? Why aren’t all of us parents and grandparents demanding it? My kids will be in their 40s in 2050, and their kids would be very likely to live beyond 2100 (but that's less clear in a world devastated by climate change). I would expect that a lot more Americans my age and older would start to see climate change as an issue that really affects us personally. Why don’t we? And what can be done to change this apparent lack of consideration for our own children and grandchildren?
- Lesley McAllister