Friday, June 7, 2013
Last week, I attended the biannual Natural Resources Law Teachers’ Institute in Flagstaff, Arizona. It was my first time at the conference, and I’ll definitely go again. It’s a great conference—well attended, a welcome focus on teaching as well as (and often in combination with) research, a good field trip, and, with one quickly-corrected exception, not a necktie in sight.
A few things in particular struck me about the conference. In no particular order:Zyg Plater gave a keynote address based on his new book about the snail darter controversy. If you ever have a chance to hear him tell the story, don’t miss it. It’s a fascinating tale even when told by others, but hearing it straight from the source was a true treat.
The Colorado River panel brought some interesting news. The first presentation, from Colorado’s Brad Udall, summarized the future implications of climate change for the basin. It was scary. But two other presentations brought surprising glints of hope. First, Theodore Melis, a scientist from the Grand Canyon Monitoring and Research Center, explained how the much-maligned adaptive management programs on the Colorado River might be creating some measurable successes. Humpback chub, one of the basin’s many endangered species, seem to be bouncing back, and a new breeding population has been successful established on Havasu Creek. Second, Robert Snow, an attorney from the Department of the Interior, explained how recent U.S.-Mexico negotiations have produced several breakthroughs, including toward cooperative and more efficient use of storage and delivery infrastructure. The recent agreements also include measures to return a little bit of water to what used to be the Colorado River Delta.
Not surprisingly, fracking was the key word of the conference. Fracking also produced the conference’s two most jarring slides. The first, from a presentation by Kalyani Robbins, shows the extent of natural gas exploration in a Pennsylvania state forest. No multiple use here. The second, which appeared in multiple presentations, was this nighttime satellite photo of the United States. What looks like a major new metropolitan area in northwestern North Dakota actually is natural gas flaring above the Bakken Formation.
If fracking was the leading theme of the conference, Joe Feller was its defining personality. The conference took place under tragic circumstances. Joe Feller had taken the lead in selecting a site and initiating the planning. But a few months ago, he was hit by a car while jogging and died. At the conference, we watched a video tribute to Joe, had a few minutes for remembrances, and took a group run in his honor. Individual presentations were peppered with stories about Joe. All of this might sound quite sad, and I suspect for many participants—particularly the many who knew Joe much better than I did—it was. Yet somehow, Joe’s memory seemed also to bring levity to the conference. So many of the stories were funny, and Joe clearly took great joy from his life’s work and play. The shared memories of Joe seemed like a reminder to enjoy having the good fortune to do the work we do, and to get out and explore the places we care most about. That legacy, I think, signifies a life lived well.
Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, May 27, 2013
Let's be honest. Whether it is a Hummer or a Prius, a truck/car is a terribly inefficient way to transport a human body. To use a 3000 pound (Prius) or 6600 (Hummer) pound vehicle to transport a single or a few human bodies that weigh at most a few hundred pounds is just a bad use of energy - unless, of course, that energy is entirely renewable. Bicycles, on the other hand, are by far the most efficient tools for transporting a human body through space and time. See more info here, and this chart demonstrating a bicycle's dominance in translating energy into transportation:
I like cycling. I bike to work for a number of reasons. It helps me (attempt to) stay in shape, I don't have to pay for parking at work, and it only takes me five minutes longer than it would to drive/sit in traffic, which in and of itself can be maddening. But I am from Alabama, and currently live in Louisiana - there are a lot of trucks in both places. Chevy Silvarados and Ford F-150's abound. While it is easy to be critical of gas guzzling Gulf Coasters - and indeed many owners of such trucks have them only for style or similarly uncompelling reasons - often there is a genuine need for a vehicle of the type. Whether it be for use on a farm, or in my case, a forest with hills that are virtually untraversable without the use of a 4 wheel drive vehicle, trucks provide utility beyond considerations of energy efficiency.
The problem, to state the obvious, is the fuels we use in all of our vehicles. A Californian who commutes 250 miles a week in a Prius that gets 50 mpg emits more vehicle-based carbon than the Louisianan who drives 90 miles a week in a Ford F-150 with a V-6 ecoboost engine that gets 22 mpg, but who bikes to work. Then there is the person who drives a Prius 90 miles per week and bikes to work, and the person who lives near public transportation and does not own a car. Ultimately, the choices we make regarding our transportation of choice facilitate our ability to be more or less carbon intensive, but only within a small range. In other words, in a fossil fuel driven world, any transportation that relies on a vehicle that weighs more than a ton to transport bodies weighing only a fraction of the total weight has significant carbon impacts, though the person driving the "gas guzzler" may be vilified and the person driving the Prius viewed as environmentally responsible.
Enter the future, and solar powered homes, and plug-in 4x4 trucks. In the future, perhaps our drawing fine distinctions between two terribly inefficient transportation options will be a thing of the past. Everyone will be using electric powered vehicles powered by a resource that will (or should) be with us for at least the next 5 billion years - the sun.
Take this guy, who helps identify where the real source of green angst should be directed (apologies for the advertisement before the video commences. A link to the video is here if the embed feature does not work):
So it is not the monster truck that should be vilified, but the monster truck that runs on fossil fuels that should be frowned upon. The fuel source should be the real source of environmentalist angst, not the machine that carries the person. The Prius owner should not look down upon the F-150 4x4 driver, but they all should be working toward moving away from that terrible fuel source that creates such ultimately silly artificial divisions on the highway. Of course, batteries in electric vehicles give rise to a host of environmental problems. But I hope that one day recyclable batteries made out of renewable cellulosic biofuel material, housed in Priuses and 4x4's all around the country, and charging from the energy of the sun, will allow the Prius owner and the 4x4 owner to drive separately, one person per car, to the Monster Truck rally (or NASCAR race), where they can sit beside each other, watch "Silent Foot" crush the gas guzzlers of the past, and listen to the cars crunch much more clearly than their ancestors ever could.
- Blake Hudson
Wednesday, May 22, 2013
A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams. And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries. Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics. Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence. As former Secretary of the Interiror Bruce Babbitt once put it, “we overdosed.” We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements. But, in the standard narrative, the removals aren’t coming nearly fast enough.
I agree with this story, and most of the underlying facts aren’t really in dispute. But another narrative of dams lingers on, particularly — but not exclusively — in the reports of the government agencies that manage much of our hydropower. In this story, hydropower remains an essential part of our energy mix. Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher). While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables. For a few key reasons, that 7 percent is also particularly useful. First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States. Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve.
Hydropower’s share also could grow. Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has approximately 80,000 non-hydropower dams). How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or—dare we hope—a price on carbon could make expanded hydro look much more economically appealing. In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future. And this narrative is not just idle storytelling. In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower.
We often think that our energy needs inevitably will conflict with environmental protection, and these two narratives might on their face seem to reinforce that view. But is the tension between these narratives unavoidable? The answer, perhaps surprisingly, is "not always," and a case study illustrates the possibilities. On the Penobscot River in Maine, an ambitious dam removal project is currently underway. Once completed, the project (which I’ve blogged about here, and which is described in more detail here, here, and here) will involve multiple dam removals and fish passage improvements on the dams that remain. Hundreds of miles of river habitat will be opened to the river’s many anadromous species — fish that breed in freshwater, but spend most of their lives in saltwater — and scientists anticipate exponential increases in their populations, with benefits for both freshwater and saltwater ecosystems. All of this will happen without any loss of hydropower. By moving and upgrading facilities, Black Bear Hydro LLC, which owns the dams, will be able to sustain its present generating capacity. Both the upgrades and the environmental improvements arose out of one big negotiated deal, with environmental groups and the Penobscot Indian Nation essentially offering support for what otherwise would have been contentious license renewals (as well as a substantial financial payment, which some of the groups helped raise) in return for the environmental improvements. In short, on the Penobscot, environmental improvements and hydropower efficiency upgrades were closely, and legally, linked.
The Great Works Dam site, before and after.
Could that be repeated? Physically, it seems possible. Most river basins in the United States contain multiple dams, and trading removals or improved fish passage in some locations for energy upgrades in others seems like a sensible step. But the legal challenges are substantial. On most rivers, many different entities own the dams, creating a significant coordination challenge, and public governance of watersheds is famously fragmented. As anyone who has worked with FERC licensing knows, renewing even a single license is a long and difficult process, and linking multiple licensing processes together sounds like a formidable task. Consequently, the legal challenges are daunting.
But are they insurmountable? I don’t yet know. But over the next few months, I’ll be taking a close and careful look at hydropower law to try to figure these questions out. The research project goal, ultimately, is to identify legal reforms that will allow our hydropower system to sustain or increase its benefits while reducing, hopefully substantially, the environmental burdens it imposes.
-Dave OwenGlen Canyon Dam image from wikimedia.com; other images courtesy of the Penobscot River Restoration Trust.
Tuesday, May 21, 2013
The California Cap and Trade Program’s third auction was held last Thursday 5/16/13, and the results were released today. I’ve been watching the auction results to see what clues they offer as to whether California’s program will suffer from the suite of problems associated with overallocation (low allowance prices, delayed emissions reductions, and large allowance banks).
Overallocation, however, really only becomes clear in retrospect. Indeed, it is precisely the unknowns of the future that make overallocation hard to avoid. There might be a recession that reduces allowance demand, or there might be solid economic growth. There might be technological change that reduces allowance demand (fracking, for example), or not. Economic change and technological change are just a couple of the exogenous factors that have contributed to overallocation in past programs (others include weather fluctuations, the success of legal challenges, etc.).
Yet there are hints to be gleaned from the results of allowance auctions. One can look at whether the allowances are selling for more than the reserve price. They didn’t for several years in the Regional Greenhouse Gas Initiative (RGGI), but a reform in February to tighten the cap have led to slightly higher allowance prices (latest auction results here). In California, they are, and the third auction looks better by this measure than did the second (see the Settlement Prices below). One can also look at the extent to which the auction is oversubscribed or not. RGGI’s auctions have often been undersubscribed. In this latest Claifornia auction, there were almost double the bids for allowances (1.78 times) than there were allowances. But this is down from California’s February auction, in which there were almost two and a half times (2.47) more bids than available allowances. Notably, all three of California “advance auctions,” which sell allowances that cannot be used for several years, have been undersubscribed (see below). These advance auction allowances have always sold at the reserve price ($10 in 2012, $10.71 in 2013).
I do think there is some "early overallocation" in California’s program, meaning that program caps are above business-as-usual (BAU) emissions in the early years. Indeed, an analysis by Energy GPS (discussed here) finds that the 2011 emissions of the entities regulated by California’s cap and trade program were about 12% lower than the 2013 cap (140.8 mmtCo2eq emitted, as compared to the 2013 cap of 160.4 mmtCo2eq). The analysis further forecasts that the 2013 cap will be about 8% higher than 2013 emissions. Whether overallocation becomes a real problem for the California program (as it has not just for RGGI, but also for the EU Emissions Trading Scheme), will depend on many factors, several of which are out of California's control.
- Lesley McAllister
Tuesday, May 14, 2013
A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents. I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation. Judging from a followup email John sent this morning, I wasn’t the only one. In a short time, it seems, he’s compiled a long list.
But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute. I know I’m not the only one. In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes. The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts. The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action. Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal. Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.
Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness. After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners). Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business. The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents.
I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic. “Don’t ever underestimate,” he told me, “how much we fear that public reaction.” For him, that fear was also leverage. The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl. I doubt his situation was unique. So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.
Monday, May 13, 2013
On Wednesday (May 15), the Environmental Law Institute is hosting a lunchtime seminar on The Future of Standing in Environmental Cases, with a great panel:
F. William Brownell, Partner, Hunton & Williams (moderator)
Amanda Leiter, Associate Professor, American University, Washington College of Law
Thomas Lorenzen, Assistant Section Chief, Environment & Natural Resources Division, Department of Justice
Roger R. Martella, Jr., Partner, Sidley Austin LLP
Allison Zieve, Director, Litigation Group, Public Citizen
I hope that the panel addresses what I regard as one of the most interesting recent developments in standing cases: the number of significant environmental cases in which the D.C. Circuit is finding that industry plaintiffs lack standing. Environmentalists and environmental law scholars have often regarded rigorous standing requirements as biased against citizen environmentalist plaintiffs. See, e.g., Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 465-73 (2008). Indeed, the Supreme Court has essentially admitted as much, noting that plaintiffs who are the target of government regulation generally satisfy standing requirements, whereas establishing standing for other plaintiffs is "substantially more difficult.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). But many of the recent significant environmental cases in which plaintiffs have lost on standing grounds involve industry plaintiffs:
- Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), held that states and industry groups lacked standing to challenge EPA’s Timing and Tailoring Rules.
- Nat'l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir. 2012), held that the National Chicken Council, National Meat Association, and National Turkey Federation lacked standing to challenge an EPA rule interpreting a provision in the Energy Independence and Security Act of 2007 regarding renewable fuel credits.
- Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), held that engine manufacturers, food suppliers, and petroleum suppliers lacked standing to challenge EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines.
- Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge findings by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River in southern Arizona are “waters of the United States” and therefore within the jurisdiction of the Clean Water Act.
- Nat’l Ass’n of Home Builders v. Army Corps of Engineers, 663 F.3d 470 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge the Army Corps of Engineers’ Nationwide Permit 46 authorizing discharges of dredged or fill material into certain non-tidal ditches.
- Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011), held that the U.S. Chamber of Commerce and National Automobile Dealers Association lacked standing to challenge EPA’s decision granting California a waiver from federal preemption of vehicle emission standards under Clean Air Act § 209.
This pattern of losses for industry plaintiffs does not appear to reflect a new development in standing doctrine; each of these decisions relies on well-established standing principles. This makes me wonder whether this string of industry losses is a coincidence, or has some underlying common cause. For example, are industry plaintiffs seeking judicial review more aggressively or expansively?
I am equally interested in seeing whether, if this pattern continues, environmentalists and environmental law scholars will soften their skepticism about standing doctrine. Of course, the obstacles encountered by industry plaintiffs in establishing standing are not necessarily the same as those encountered by environmentalist plaintiffs, and so one can take a principled position that courts have interpreted standing doctrine too stringently as applied to losing environmental groups but correctly as applied to these losing industry plaintiffs. But it does seem to me that, these days, the results in standing cases seem somewhat less disproportionately against environmentalist plaintiffs.
Wednesday, May 8, 2013
In a bit of shameless self-promotion of my home institution, I wanted to highlight that LSU's Laborde Energy Law Center has now been officially launched. You can check out the new website here. The Center was made possible in large part by a gift from LSU Law graduate John P. Laborde, who graciously gave the largest gift to the law school in its history. The Laborde Center will have many missions, but its academic programming will focus in large part on providing students practical training and experiential learning opportunities in the area of energy law prior to graduation, including (but not limited to): field trips to energy facilities to learn about the regulatory compliance and other obligations of those industries; white papers informing the broader legal community of timely energy and environmental legal issues; a speaker series with prominent speakers from both the state of Louisiana and nationally; a concentration program in energy law with expanded energy and environmental course offerings; collaboration with the newly formed LSU Journal of Energy Law and Resources to put on a yearly symposium; development of networking and internship opportunities for students in the energy law field; development of robust interdisciplinary curricular and experiential learning opportunities with programs on main campus (such as Geology, Petroleum Engineering, Nuclear Sciences, Coastal Sciences, Environmental Science, Business, and Chemical Engineering).
We are very excited about the center and hope that it will be a resource that the broader energy and environmental law communities can turn to for expertise in the field. Below is the vision statement of the Laborde Energy Law Center:
The twenty-first century presents no challenge to Louisiana, the United States, and indeed the global community greater than that of producing and distributing energy in an effective, safe, equitable and environmentally sound fashion. To meet this challenge, decision-makers in both the private and public sectors increasingly must rely on attorneys with a sophisticated understanding of the energy industry and the legal and regulatory framework with which the industry operates, in Louisiana and beyond. In recognition of this need, the LSU Law Center has created the LSU John P. Laborde Energy Law Center that will serve as a leading focal point for educating highly skilled attorneys deeply grounded in the law, business and science of twenty-first century energy in all of its manifestations.
Legal and regulatory issues surrounding the energy industry have become increasingly complex and specialized over the past 30 years as new forms of energy have emerged and regulation of the energy sector has increased. In this context, the demand for legal professionals with a broad, deep and interdisciplinary background in energy law will only grow more pressing. To meet this demand, the Energy Law Center will work to provide superlative preparation for “client ready” attorneys ready to meet the needs of our State and the broader national community.
The Energy Law Center will provide an integrative, multidisciplinary approach to energy law specialization that will complement and add to cutting-edge thinking about legal education. Our graduates pursuing specialization in the energy sector will be “prepared for practice” and ready to assist with complex projects involving teams of interdisciplinary professionals in the energy industry.
The interdisciplinary mission of the Energy Law Center will provide an additional link between LSU Law and other LSU campuses and disciplines, such as geology, geophysics, biology engineering, and finance. The Center will also provide new opportunities to build relationships with other interested organizations in the state and across the nation.
Fundamentally, there is no state that is more appropriate for housing such a center, no state in greater need of a comprehensive Energy Law Center, than Louisiana, and no law school better positioned to foster such a center than LSU Law.
- Blake Hudson
Tuesday, May 7, 2013
Below is a Call for Papers that inspires critical, big-picture thinking. Among the possible topics, conference organizers have included the following environmentally-related ones:
- Population and shifting demographics—opportunities and rhetorical strategies
- Capture and the regulated state
- The economy, class and energy policy
- Class, race, climate change and the environment
- The contracting state, private governance and the emergence of a new feudalism?
- The dysfunctional corporate food sytem
ClassCrits VI: Stuck in Forward? Debt, Austerity and the Possibilities of the Political
Sponsored by Southwestern Law School & U.C. Davis School of Law, Los Angeles, CA, November 15-16, 2013
Excerpt from the Call for Papers:
"What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics? How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts. Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order."
Proposal Submission Procedure and EXTENDED Deadline
Please submit your proposal by email to email@example.com by May 15, 2013. Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words. Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.”
See the full Call for Papers and Presentations for more information about this year’s themes and topics.
- Lesley McAllister
Monday, May 6, 2013
Recently, one of my colleagues faced a dilemma involving submissions. Two months ago, he agreed to publish an article in a top specialty journal. It was late in the submission season and he was somewhat naive about the process, so he didn't realize any journals might still be considering the article, and he didn't withdraw the submission from other law reviews. To his surprise, a top law review recently expressed interest. What to do?
I'm curious how other colleagues (and law review editors) have handled this situation. Of course, the best answer is to avoid the situation entirely by withdrawing your submission everywhere else immediately upon accepting a journal's publication offer. But that clearly doesn't alert every journal--most years, I get a few rejections, and occasionally an inquiry, from journals I withdrew from weeks earlier--and I've heard of two other instances where this situation arose. In both, the initial offeror retained the article. But I'm wondering if that's a typical resolution.
- Dave Owen
Monday, April 29, 2013
We are very glad to welcome Professor Robin Kundis Craig to Environmental Law Prof Blog. Robin completed her doctorate in English literature at UC Santa Barbara and her law degree at Lewis & Clark. Before entering academia, she worked for the Natural Resources Section of the Oregon Department of Justice and clerked for U.S. District Judge Robert Jones. She is presently the William H. Leary Professor of Law at the University of Utah S.J. Quinney School of Law.
While first and foremost a water law guru, Robin also has great expertise in property law, civil procedure, administrative law, toxic torts, and environmental law generally. She is the author or co-author of four books – Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (2012); Environmental Law in Context (3rd ed. 2012); Toxic and Environmental Torts (2010); and The Clean Water Act and the Constitution (2nd ed. 2009) – and she is working on a new water law casebook, Modern Water Law, with Professors Bob Adler and Noah Hall, due out in June 2013. She has also published over 50 law review articles and book chapters.
Given Robin’s broad expertise and prolific writing, we are delighted to have her in our ranks this summer!
- Lesley McAllister
Friday, April 26, 2013
When federal agencies impose regulations on businesses, who decides what those rules actually mean? In a recent decision, the Supreme Court said that agencies do.
In Decker v. Northwest Environmental Defense Center, the Court examined whether the Environmental Protection Agency (EPA) reasonably interpreted its regulations when concluding that permits were not required under the Clean Water Act to discharge storm water runoff from logging operations. The Court – ruling that the EPA’s interpretation was reasonable – affirmed the principle that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is plainly erroneous or inconsistent with the regulation.
The dispute in Decker arose following the actions of logging and paper-product companies in Oregon. Under a contract with the state, Georgia-Pacific West and other logging companies harvested timber from a state forest using graded roads to transport the timber. When it rained, water from those roads – often filled with sediment, dirt, and crushed gravel – ran off into nearby rivers and streams.
In September, 2006, the Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon, alleging that the logging companies caused discharges of storm water runoff into two waterways and had not obtained the necessary permits to do so under the Clean Water Act.
The District Court dismissed the action, concluding that the discharges were permissible, but the Court of Appeals for the Ninth Circuit reversed.
The Supreme Court granted certiorari to address the question of whether the EPA’s interpretation of its own regulations – that permits are not required for discharges from storm water runoff from logging roads– was reasonable.
The Clean Water Act requires a permit if storm water runoff “associated with industrial activity” is discharged into navigable waters. The EPA, the agency responsible for enforcing the Clean Water Act, issued regulations defining “associated with industrial activity” as only those discharges “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” The EPA later interpreted storm water runoff from logging roads as excluded from this definition.
In a 7-1 decision, the Court sided with the EPA, concluding that the agency’s interpretation was reasonable and therefore entitled to deference under a previous Supreme Court decision in Auer v. Robbins.
After noting that jurisdictional issues did not preclude the courts from hearing the case, the Court turned to whether the EPA’s interpretation of “associated with industrial activity” was reasonable.
First, relying on the general rule enunciated in Auer that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation,” the Court concluded that while the term “industrial” can refer to business activity in general, the term also might apply more narrowly to the manufacture of goods in factories, which does not include outdoor timber harvesting.
Second, the Court determined that the EPA’s interpretation that the regulation extends only to traditional industrial activities was rational and therefore permissible.
Finally, the Court concluded that the EPA “could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive,” given the backdrop of extensive state regulation of storm water runoff from logging roads
Although the Court acknowledged that the EPA’s interpretation might not necessarily the best one, it noted that the interpretation was consistent with the regulation and therefore entitled to deference.
Justice Scalia, disputing the majority’s deferential approach, argued in dissent that the Court should not grant such discretion to federal agencies. He asserted that Auer should be reconsidered because no persuasive justifications exist for affording federal agencies both deference in creating regulations and interpreting them. In its place, Scalia suggested the Court should instead determine whether the agency’s interpretation of the regulations was the most fair.
The Court – refusing to endorse Scalia’s arguments limiting agencies’ interpretive discretion – reversed the Ninth Circuit and remanded the case for proceedings consistent with its opinion.
Justice Stephen Breyer did not take part in the decision because his brother, a judge in the United States District Court for the Northern District of California, sat on the Ninth Circuit panel that had decided the matter under review.
(reposted by Lesley McAllister)
Thursday, April 25, 2013
Last week brought closure to a rather interesting legal controversy at the northeastern corner of the country. The St. Croix River, which forms part of the boundary between Maine and Canada, once supported millions of alewives (also known as river herring). Dams and pollution decimated alewife runs throughout the northeast, but by the mid-1990s, the St. Croix run had partially recovered. That recovery alarmed local fishing guides, who blamed the alewives for declining smallmouth bass populations. In response to these concerns, Maine enacted legislation requiring closure of a key fish ladder. With the ladder blocked, alewife populations again declined precipitously.
This second decline eventually led to both litigation and legislative activity. On the litigation front, the Conservation Law Foundation, a regional environmental group, began by suing EPA. CLF argued that the state’s actions constituted a de facto amendment of water quality standards for the St. Croix, and that EPA was obligated to review that change. That suit culminated in an EPA letter to the state of Maine, in which EPA concurred in CLF’s position. But the state initially brushed off the letter, and it appeared that CLF would need to file another lawsuit to compel state action. CLF did file that lawsuit, but the suit raised a host of jurisdictional issues, some of them quite thorny. As thoroughly explained here, bringing lawsuits to compel compliance with water quality standards is no easy matter. Those jurisdictional issues now have been briefed but not yet addressed by the court.
Now, however, those same issues are moot. The state legislature recently passed a bill requiring the reopening of the fish ladder. The legislation had broad support: Native American tribes and commercial fishing interests joined environmentalists in support of the bill, while only a few fishing guides remained opposed. That alone was no guarantee of gubernatorial support. Maine’s governor spent part of last week speaking at an anti-Agenda 21 rally, and when it comes to pro-environmental legislation, all bets are currently off. But even if he could not bring himself to sign the bill, the governor also declined to veto it, and last week the bill quietly became law.
So why should anyone outside of an obscure corner of Maine care? There are three main reasons. First, this controversy highlights intriguing questions about EPA’s obligation to review state actions that serve as de facto amendments of water quality standards. Many state actions arguably could meet that description. Installing a board in a fish ladder, and thus preventing fish migration through a river system whose designated uses include supporting native fisheries, seems like an obvious example. But what about approving subdivisions that alter stormwater runoff in ways that damage water quality? Could that require EPA approval as well?
Second, the litigation, had it proceeded, would have compelled the courts to confront some interesting questions about the enforceability of water quality standards. And those theories in turn would have implicated basic questions of federalism. For example, the plaintiffs’ most plausible source of a cause of action might have been the U.S. Constitution’s supremacy clause. And the United States Supreme Court recently raised, without resolving, questions about whether such a cause of action exists.
Finally, and perhaps most importantly, the ecological benefits of this recovery project could be substantial. Alewives are the anadromous equivalent of rabbits; they reproduce in astonishing numbers, and just about every predator that lives in northeastern river systems or the near-shore ocean eats them. Right now, they’re under consideration for ESA listing, but a recovered population could help New England’s iconic, and beleaguered, groundfishery bounce back.
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