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
Monday, March 4, 2013
* The Energy Information Administration reported that power plant-produced NOx and SO2 emissions are lower than in two decades
* The First Circuit rejected Massachusetts' challenge to the relicensing of the Pilgrim nuclear power station
* A new book is out on the intractable problem of high-level nuclear waste disposal
* A group of business executives released their plan for a new U.S. energy future
* Climate change is threatening the wolverine
* The New York Times ended its Green blog
Tuesday, February 26, 2013
According latest newsreports and blogs, China is considering imposing a carbon tax. A Washington Post blog provides an overview of the tax and its implications here. If China succeeds in imposing the carbon tax, it will be an important first step to achieve emissions reduction in one of the world's largest emitting nations. The question is what the implication of this action will be for the successor treaty to the Kyoto Protocol?
President Obama in his State of the Union address appeared to lean towards a cap and trade regime, given his reference to the McCain-Lieberman Bill. This preference means that the United States government may pursue a cap and trade option over a carbon tax. Whether one is better than the other is an ongoing debate.
The critical issue is how, if at all, the difference in the choice pursued by these countries will affect a future international climate treaty. On a positive note, steps taken by the two major emitters and economic powers could lead to much needed consensus on international action. However, it could also mean that the two major emitters may differ on the future of the Kyoto Protocol emissions trading system.
On the one hand, a change to the central architecture of the Kyoto Protocol could spell further disagreement and probably the disintergration of the Kyoto Protocol. On the other hand, it could usher a welcome change to the architecture of the Kyoto Protocol, which has presented several challenges since its inception. It may perhaps help begin a dialogue for an alternative and much more flexible framework for achieving emissions reduction.
"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
Perspectives on Crisis, Resilience and the Reformation of the International Law on Sustainable Development
Sustainability is a concept or goal to guide decision making at the intersection among the social and economic components of the human system and the environment.
Unlike sustainability, resilience is an inherent property of a system. It is the degree to which a system maintains the same structure and function in the face of change or a perturbation.
Unlike sustainability, resilience as a general concept is value neutral. A system may be highly resilient either because it is quite adaptable (latitude) or quite resistant to change (resistance).
Thus, an overgrazed field taken over by invasive weeds may be resistant to returning to its original state when livestock are removed – it is therefore resilient but not necessarily something we label as good.
A brutal military dictatorship may be highly resistant to change -- it is therefore resilient but not necessarily something we label as good.
Thus it is common to talk about resilience in the context of societal goals such as sustainability or the maintenance of ecosystem function. What resilience brings to the discussion is a deeper understanding of how to adjust our actions in a complex system to achieve these goals.
In my former life as a scientist, it was always what happens at the boundaries of two systems that interested me – in science it was the boundary between physical systems, now it is the boundary between schools of thought – it is what led me to interdisciplinary research.
In physical chemistry I studied the laws of thermodynamics applicable to ideal systems and I loved their simplicity and predictive capability. But as a researcher in geochemistry, I studied a system in which the temperatures had been warm enough to cause mineral composition to change when seawater and rock interacted, but too slowly to reach equilibrium. You might predict that the results would plot on a continuum from the original state to the new equilibrium state. You would be wrong. The same discrete intermediate stage occurred over and over again.
We see this in other complex systems. Consider a river – on the one hand you can study and model fluid flow, on the other hand you can describe the properties of the river bed. But put them together and you have a boundary condition. The entire behavior of the new system is defined by how the water and stream bed interact. And that interaction is not random chaos. Rivers persist in certain forms that are empirically predictable.
Understand quantum physics and thermodynamics and you will never predict life. Evolution is our current way of understanding the change of one life form to another, yet despite our search for a continuum in the fossil record, there appear to be discrete steps. One aspect of resilience scholarship is the recognition that systems are self-organizing. Thus a system that crosses a threshold, will reorganize in another discrete state. It may or may not be a state that we value.
The danger of goals like sustainability without integration with a concept like resilience that relates to both the properties and processes within the relevant system is that the failure to account for complexity may lead to system collapse. For example: Consider what are referred to as the 4 R’s of sustainability: re-duce, re-use, re-cycle, -re-claim. While they sound good, optimization of resource exploitation through ever increasing efficiency can move the system precariously close to a threshold. Thus a social-ecological system relying on a water source that is developed to the maximum level of efficiency is highly susceptible to collapse in the face of disaster and crisis such as increasing prolonged drought resulting from climate change.
My own work is premised on the hypothesis that by consideration of governance through the lens of resilience we can define certain criteria that facilitate adaptability and legitimacy and are transferrable to multiple systems at multiple scales. I will briefly describe three projects:
1. On the problem of disaster and crisis or simply, change: we are looking at a simple process of mapping the scale at which particular ecosystem services function in comparison to scale of governance in the context of river basins, then identifying potential thresholds that may be reached due to external environmental and social drivers such as climate change, nutrient cycles, population, the economy, and institutions. Preliminary work shows at least 2 outcomes:
- When we replace a service provided by the ecosystem with an engineered service, we tend to move up a scale in both the governance and the physical system. This is because we tend to engineer complexity out of the system – replacing the function of the floodplain with dams and levees for example.
- This reduces our ability to adapt in the face of external drivers
2. On the problem of – just because science says it is the right thing to do, does not mean society will do it. For this I have been looking at the work of scholars more adept than I on the concept of legitimacy which considers: how persuasive are the decisions made by our leaders – are their actions justified (normative) and do we perceive them as justified (popular). I use legitimacy specifically in the context of the actions of administrative agencies. One of the outcomes is that by looking at decision-making through the lens of resilience, process matters – it is not enough to use good science. My work looks at the use of local knowledge and capacity building to facilitate local deliberation and innovation; the use of negotiated time frames for adjustment to allow stability while enhancing flexibility; the use of goal setting and monitoring to enhance accountability; and the use of networks to bridge between scales and entities with fragmented jurisdictional authority.
3. Finally, a project in the funding proposal stage would bring together legal and resilience scholars, political scientists and ecologists to integrate the work from the first two projects into a set of criteria for adaptive governance to achieve social-ecological resilience.
I am enough of a student of the history of science that I don’t believe resilience is the end point of that understanding, but it gives us a way to better align our behavior in the social system with how changes are occurring in the ecological system and to begin to make at least empirical sense out of the feedbacks between the two – generally the precursor to great leaps in thought. All we are doing then is setting things up for the next generation to make that leap to the theories to describe the complex behavior at the boundary between social and ecological systems.Comments of Professor Barbara Cosens from a panel on Crisis, Resilience and the Reformation of the International Law on Sustainable Development at the Canadian Council on International Law Conference, Ottawa, Nov. 2012
Tuesday, February 19, 2013
Professor Dworkin, Professor at NYU Law School and Professor Emeritus at University College London, passed away on February 15, 2013. The legal world has lost a giant, but his work endures.
I was first introduced to Professor Dworkin's work as part of my mandatory jurisprudence course, while studying law at the National Law School of India University. My professor, an avid follower of Professor H.L.A.Hart, nevertheless introduced us to Professor Dworkin's work, leaving us to be judges of which philosophy was more persuasive. Honestly, it was not a task that many of us were prepared to undertake at that point.
However, over the years, I have come to appreciate the short introduction to legal philosophy and to the works of keen jurists such as Professor Dworkin. While far from fully understanding the sophistication of all his arguments, his core philosophy that law and morality are reconcilable resonate strongly now.
While thinking about his work, I reverted back to one of the first articles of Professor Dworkin that I attempted to read in a thick hardbound copy of the Harvard Law Review years back--Hard Cases (88 Harv. L. Rev. 1057 (1975)). While the Westlaw version is less thicker and more accessible, the contents remain breathtakingly broad-ranging and complex. Nevertheless, as I read through it, I am reminded of one "hard case" that is out there pending adjudication--the matter of climate torts.
I would be lying if I said that by reading Professor Dworkin's essay, I have come up with a philosophical framework for addressing climate torts. However, it may be an interesting project to go through the essay in search of a meaningful framework by which we can think through the hard case of climate change. For now, let me say that I have found one starting point in this sentence explaining his core thesis in the essay:
"I propose,..., the thesis that judicial decisions in civil cases, even in hard cases..., characteristically are and should be generated by principle not policy." (p. 1060).
The question then is, when we are dealing with hard civil cases such as climate change, where a decision will have global impacts, what is the principle that judges should pursue? Perhaps, I will have some thoughts after I have carefully read Professor Dworkin's essay again.
Friday, February 15, 2013
Today, Friday, February 15, 2013, the University of Utah S.J. Quinney College of Law is hosting its third annual academic conference. The topic is Perpetual Conservation Easements: What Have We Learned and Where Should We Go From Here?. Organized by Prof. Nancy McLaughlin, the event promises a fascinating deep dive into a complex and interesting topic.
If you can't attend in Salt Lake City, watch live via the internet.
The agenda (all times MST):
Robert B. Keiter, University of Utah S.J. Quinney College of Law
Nancy A. McLaughlin, Robert W. Swenson Professor of Law,
University of Utah S.J. Quinney College of Law
Federal Tax Incentives
- History - Theodore S. Sims, Professor of Law, Boston University School of Law; Formerly with the Treasury Department
- IRS Response to Abuses - Karin Gross, Supervisory Attorney, IRS Office of Chief Counsel
- Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation
State Enabling Statutes
- History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee
- Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property
- Reforms - Jeffrey Pidot, Former Chief of the Natural Resources Division of the Maine Attorney General’s Office (retired); Originator of Maine’s Enabling Statute Reforms
2:20 p.m. Break
2:45 - 3:45 p.m.
- Cases and Controversies - Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
- History - Marion R. Fremont-Smith, Senior Research Fellow, Hauser Center for Nonprofit Organizations, Harvard University
- Limits of Self-Regulation - Melanie B. Leslie, Professor of Law, Cardozo Law School
3:45 - 4:45 p.m.
Working With State Attorney General Offices
- Overview of Attorney General’s Role in Charitable Sector - Mark A. Pacella, Chief Deputy Attorney General, Charitable Trusts and Organizations Section, Pennsylvania Office of the Attorney General
- Working With the Attorney General’s Office in New Hampshire - Terry M. Knowles, Assistant Director, Charitable Trusts Unit, Department of Attorney General of New Hampshire
- Working With the Attorney General’s Office in California - Darla Guenzler, Executive Director, California Council of Land Trusts
4:45 - 5:00 p.m.
Concluding Remarks—Taking The Long View
Wendy Fisher, Executive Director, Utah Open Lands Conservation Association
Thursday, February 14, 2013
Almost exactly one year ago, the Texas Supreme Court issued a decision that ranks—at least by the modest standards of groundwater litigation—as a blockbuster. In Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), the court held that landowners own property rights in groundwater beneath their land, even before they pump that groundwater, and that restrictions on groundwater use could create a taking. This caused a stir among water lawyers. The application of takings doctrine to surface water rights was already a hot topic, particularly following the federal government’s defeat in Tulare Lake Basin Water Storage Authority v. United States, 49 Fed. Cl. 313 (2001). Day provides a reminder that the water/takings battle also has a growing subterranean front.
The Day decision inspired me to see what other courts have had to say about takings claims involving groundwater. The answer, it turns out, is quite a lot, and the cases hold lessons for larger debates about water rights and takings. Those cases and lessons, some ideas for the future evolution of groundwater/takings law, and the reasons why we should care all are summarized in greater detail here. The article is still a draft, and I welcome reader comments.
The University of Utah law school's Stegner Center for Land, Resources and the Environment is proud to announce its 18th Annual Symposium, which this year will focus on the topic Religion, Faith, and the Environment.
Details, the conference agenda, and registration are available here.
Wednesday, February 13, 2013
The Utah Law Review--the University of Utah S.J. Quinney College of Law's flagship publication--has announced that it will begin publishing an annual special issue on environmental, natural resources, and energy law. The issue will publish on a schedule opposite the Colorado Law Review's special natural resources law issue. The announcement and details are below:
The Utah Law Review is excited to announce the inaugural Environmental & Natural Resources Issue, to be published next winter, Utah Law Review, Vol. 2013, No. 6 (expected in print December 2013).
This new special winter issue, Issue 6 of each year’s Utah Law Review, replaces the Utah Environmental Law Review specialty journal. This robust issue will feature 4 to 6 scholarly works solicited through article selection, student works, and dynamic symposium pieces published in coordination with the Wallace Stegner Center for Land, Resources and the Environment. Published works will focus on significant issues in natural resources, energy, and environmental law and policy.
We look forward to working with scholars to publish pieces that illuminate the challenges and opportunities in this evolving and critically important field. While we will be selecting a majority of our articles through the spring article submission process, we also plan to reserve space for articles submitted in the fall submission season.
For more information, please contact:
Utah Law Review
Erin St. John
Utah Law Review
Tuesday, February 12, 2013
The University of Washington law school has issued a call for papers for its annual Young Environmental Law Scholars Workshop, a fantastically helpful and well-organized event. Details are below:
Call for Papers
UW Young Environmental Law Scholars Annual Workshop
University of Washington School of Law
July 10-12, 2013
The University of Washington is pleased to announce the 2nd Annual UW Young Environmental Law Scholars Workshop. This collegial two-day workshop features discussion of works-in-progress by ten early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows. We welcome submissions from the broad fields of environmental, natural resources, and energy law.
Participating junior scholars will be asked to submit an unpublished work-in-progress one month before the workshop. Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary. At the workshop, each paper will receive an hour of discussion: a brief presentation by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group. The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.
The senior scholars participating in this year’s workshop are:
- Robert T. Anderson - Director, Native American Law Center, University of Washington
- William H. Rodgers - Stimson Bullitt Professor of Environmental Law, University of Washington
- Mark Squillace - Director, Natural Resources Law Center, University of Colorado
- Wendy E. Wagner - Joe A. Worsham Centennial Professor, University of Texas
- Sandra B. Zellmer - Robert B. Daugherty Professor of Law, University of Nebraska
To apply, please submit a cover letter, an abstract of no more than 500 words, and a C.V. to email@example.com by March 1, 2013.
All meals will be included. Participants will be responsible for their travel and lodging costs.
Friday, February 8, 2013
1. California successfully defended a lawsuit by two environmental NGOS, which challenged its cap and trade program on the ground that emitters could by credit from entities that were not part of the program. A report of the news is available here.
2. New York Governor Cuomo has proposed that the government buy property in some coastal parts that were affected by Hurricane Sandy and preserve the floodprone area as undeveloped coastline. A newslink to the story is available here. Several residents welcome the proposal and the idea of preserving the area instead of re-building appears sound. The question, however, is whether the risk of building in flood prone areas should be borne by private property owners via insurance or by taxpayers. At the same time, given the scale of government response warranted in such instances, taxpayers may ultimately bear the burden in any case. It is a difficult question, which may only get more complex if extreme weather patterns increase.
3. The United States has filed a complaint against India before the WTO for imposing domestic content restrictions as part some of its program to promote solar energy. India is defending the program as a government procurement. A link to the news is available here.
Tuesday, February 5, 2013
Until the tsunami hit Fukushima, the future of nuclear energy appeared bright. Several nations were poised to expand their nuclear energy portfolio. Since the crisis in Japan, however, some countries have reversed their decision. Germany is a good example, as is Japan itself. Both nations are committed to increasing their renewable energy portfolio, instead. From an environmental perspective, particularly nuclear waste and water usage, this is a positive development.
But, not all nations are on board. Other countries, notably emerging economies such as China and India, are poised to expand their nuclear energy. So is the United States. What does this mean to the global environment?
At present, it appears to be a non-issue. But, let us consider a scenario where a few countries generate a substantial amount of nuclear energy. Where will their waste go? What will happen in case of a meltdown? If there is transboundary harm, who will bear the responsibility? These are be issues that require some forethought and may be a good reason to pursue a global regime for civilian nuclear energy. It may seem to be a far off problem, but as environmental history has shown, such problems tend to catch with us quickly, leaving little room for meaningful action.
Thursday, January 31, 2013
In a recent article, I argued that certain policies in the electric power sector could further both climate change mitigation and adaptation (Adaptive Mitigation in the Electric Power Sector, 2011 BYU L. Rev 2116). An important example relates to the differential water requirements of power generation technologies: wind and solar PV have low water requirements, while fossil fuel and nuclear generally have very high ones. Astoundingly, about 40% of withdrawals of freshwater in the US are for thermoelectric power plants.
In my research for the article, I was delighted to find that a provision of the Energy Policy Act of 2005 required the Department of Energy (DOE), within 2 years, to produce a report on the nexus between energy and water supply and demand and a set of recommendations for future actions (42 USC 16319). But I soon learned that only an initial report had been produced. “Energy Demands on Water Resources” was publicly released in February 2007. The process of putting together recommendations was dubbed the “Energy-Water Roadmap process,” with the goal of “summarizing the needs, prioritization criteria, major gaps, innovative technical approaches and associated research needs, R&D priorities and strategies, and associated policy, regulatory, and economic assessments.” Now, five years after its due date, the Roadmap has still not been publicly released and, as of 2009, it had reportedly already been rewritten 22 times.
A few days ago, a petition was created asking the White House to compel DOE to complete the Roadmap report. The petition has fewer than 1,000 signatures and it needs 100,000 within 30 days (by February 24) to get a response from the White House. The odds seem long, but perhaps not impossible. You can sign it here (whitehouse.gov).
- Lesley McAllister
That's the feeling one gets reading today's news about northeastern fisheries. This year's story is much like the stories from other recent years, and those stories are quite similar to the twenty-year-old stories in the natural resources casebook I use. Fisheries regulators set limits. Fishermen complain that the limits are unjuustified and will be economically devastating. Regulators and environmental advocates point out that the reason these limits have to be stringent is that the limits of previous years weren't stringent enough (in their public statements, they're usually polite enough to not point out that those limits weren't sufficiently stringent partly because fishermen and their supporters resisted argued that lower limits would be economically devastating). Northeastern politicians ask for disaster relief (only this year, they don't get it).
One hopeful sign is that this isn't the story for all U.S. fisheries. Many are actually stable or improving, and legal innovations like catch share programs are part of that positive story. And another somewhat hopeful sign is that some species in the waters off New England actually are doing well. Unfortunately, it's hard to catch those species without also catching cod, which aren't doing well at all. And that means, as today's news unfortunately reminds us, that the northeastern fisheries remain stuck in the same vicious cycle.
Tuesday, January 29, 2013
350.org and the Sierra Club are organizing a “Forward on Climate” rally in DC on Sunday, February 17 (Presidents' Day Weekend). They hope it will be the largest climate rally in history. I hope so too because climate change really needs some popular mobilization. On the first day of my environmental law class this semester, I gave students a list of major federal environmental statutes to provide an overview of the field. We observed just how much of the legal development happened in the 1970s, and discussed why. The incredible surge of popular mobilization that occurred in the late 60s and early 70s is certainly a big part of the answer. Twenty million Americans participated in Earth Day in 1970, a full 10% of the country’s population. Just imagine 10% of today’s population today -- 31 million people -- demonstrating for action on climate change. It might even jolt today's Congress into serious action.
By the way, if you have time, check out this PBS documentary on the history of the environmental movement, Earth Days (2010, 113 mins., part of the American Experience series).
- Lesley McAllister
Monday, January 28, 2013
- Climate change took a prominent place in President Obama's Second Inaugural Address.
- The D.C. Circuit overturned EPA's biofuels mandate.
- The D.C. Circuit also denied rehearing in the cross-state air pollution case.
- And (it was a busy week for air pollution cases) the D.C. Circuit also sided with the Sierra Club in a dispute over an EPA rule that exempted some stationary sources from monitoring requirements for fine particulate matter.
- Nebraska Governor Dave Heineman approved a route for the Keystone XL Pipeline.
- The United State Court of Federal Claims dismissed a billion-dollar lawsuit brought by Westlands Water District against the United States.
Friday, January 25, 2013
In 2010, in the matter of Brannan v. State of Texas, a Texas appellate court rejected a takings challenge to the State’s Open Beaches Act (OBA), a longstanding statute that affords the public a mechanism to enforce collective rights to access beaches as acquired by dedication, prescription, or custom. Today, the Texas Supreme Court vacated that decision and remanded to the appellate court for further consideration in light of its 2012 holding on rehearing in Severance v. Patterson.
In Brannan, the State, in accord with the OBA, ordered a number of Gulf-front homes removed after erosion and storm events combined to move the first line of vegetation landward of where those homes were located. Fourteen landowners challenged this action as a taking. The appellate court dismissed the landowners’ claims because the beach had been historically dedicated to the public use, and the existence of the homes impeded the public’s access to it.
Today, without hearing oral argument, the Texas Supreme Court vacated that decision and remanded to the appellate court in a vague, two-page per curiam order. While there was no concurring or dissenting opinion, three members of the court did not participate in the decision. The order, available here, reads in pertinent part:
The court of appeals rejected petitioners’ [takings] claims, and petitioners sought review in this Court.
While their petition has been pending, we have issued our opinion in Severance v. Patterson, 370 S.W.3d 705, 725 (Tex. 2012), concluding that “avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.” We now conclude that this case should be remanded to the court of appeals for further consideration in light of Severance.
It is not readily evident that this order forecloses any of the State’s arguments surrounding mootness, avulsion, and waiver moving forward.
On the first, the appellate decision in Brannan ultimately applied only to three claimants, for the other eleven claimants’ homes were destroyed by natural tidal surges prior to the court’s ruling; moreover, since 2009, all of the land at issue in the case has lain seaward of the high tide line and thus is subject to the public trust.
On the second, it is not clear that the shoreline in this area migrated landward as the result of an avulsive event. If the shoreline —and, thus, the public easement— migrated landward as the result of imperceptible erosion, Severance says that the easement does "roll" under Texas common law (such that the claimants would have no property right capable of being taken).
On the third, the State has alleged that the landowners waived their Severance claim. Though a remand “for further consideration in light of Severance” could be interpreted to say that the landowners have not waived their Severance claim, it seems that the Court might have mentioned waiver in its order (which it pondered for nine months after issuing Severance) if it actually was deciding the waiver question.
Stay tuned to the Environmental Law Professor’s Blog for updates on Brannan as this beach access dispute heads back to the court of appeals.
-Tim Mulvaney (firstname.lastname@example.org)
Sunstein's arguments for Unilateral U.S. Action on climate change: But would it really be unilateral? Would it really help achieve an meaningful international climate treaty?
In a recent opinion posted in Bloomberg news, Cass Sunstein argues that the United States should act unilaterally in addressing climate change. This is an interesting argument coming from Sunstein, whose scholarship has highlighted the economic costs of "unilateral
U.S. action. In his recent opinion piece, he acknowledges the economic objection, which he terms as the Sophisticated Objection, to unilateral action. He provides three responses to counter the objection. First, U.S. leadership will likely persuade other countries to follow. Second, regulation will spur technological development, as did the ozone depletion treaty. Third, not all regulation will be costly to the U.S.; some may actually prove beneficial.
Each argument is valid and has been made by those favoring U.S. action on climate action in the past. Also, Sunstein acknowledges that there is no guarantee that unilateral action will yield an international agreement. The question, however, is whether U.S. action can be construed as unilateral action at all. And, whether the current design for international action is viable.
To be sure, from a limited perspective of comparing the United States with China, the former's action would be unilateral. However, a handful of Annex I countries are already committed to multilateral climate action. If the U.S. were to join in a climate treaty, it would simply strengthen the existing climate pact, at least in terms of participation. If, on the other hand, Sunstein is referring to unilateral action outside the Kyoto Protocol, it is unlikely that such action will persuade an international agreement. It may spur more "unilateral" action.
And then there is the bigger question: is the Kyoto Protocol design suitable to address the complex problem of climate change? As I argued in a short essay published in the Environmental Law Reporter recently, developing countries may simply not be equipped to implement market mechanisms to address climate change. Achieving measurable emissions reduction may then prove futile.
Thus, while U.S. participation in the multilateral process to address climate change is critical and would be extremely beneficial to moving forward on the climate change debate, the long term multilateral legal solution to the problem requires much more thought.