Wednesday, February 26, 2014

Shell, the Arctic, and the Classroom

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.  

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff.  Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.  

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

- Michael Burger

February 26, 2014 in Biodiversity, Climate Change, Energy, Environmental Assessment, Law, US | Permalink | TrackBack (0)

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

 

 

June 4, 2013 in Air Quality, Constitutional Law, Law, North America, US | Permalink | Comments (0) | TrackBack (0)

Sunday, June 2, 2013

Happy World Oceans Day . . . sort of

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)

Wednesday, March 27, 2013

China Environmental Experiences, Post Script: Returning from China to the U.S.

This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor.  (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.) 

ELPB 1 INtro - QingDaYiLuMy family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid.  As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific.  Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home.  This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing.  It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity. 

(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)

The Long Journey Home Begins.  In departing  Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland.  It was a long trip, but the transitioning away from China began immediately.  Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed.  Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down.  Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis.  We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor.  We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.

Indeed, when we got home, the first thing we did was ate.  Picture5 And ate and ate and ate.  Especially fresh fruits and vegetables!  Strawberries.  Raw spinach.  Fresh-squeezed orange juice.  I have had a bowl of grape tomatoes on my kitchen counter every day since we got home, replenished like an open candy bowl.  Pesto, chevre, basil… flavors that have never been so missed.  Whole grains.  Sourdough.  Bread baked in my own oven, after a year in which nobody we knew even had one.  Tollhouse cookies, donuts...  my son has eaten a bagel every morning for months and they have not begun to lose their allure.  We knew that our Chinese friends return from the U.S. with exactly the same desperation for their own food culture, but that didn’t alter the joy of our own reunion.

And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy. 

On our second or day back, I went grocery shopping with my four-year old son.  I was mentally prepared for how psychologically fraught this might be.  I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time.  I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption.  I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused.  Everything was so sterilized, and there was just so much of it all.  No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything

Picture2I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands).  It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.

I shut my eyes, centered my breathing, and considered how much we wanted those strawberries.  And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping.  Like I had never left.  In fact, I knew exactly what to do.  I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter.  Suddenly, it wasn’t so strange after all. 

Which became its own haunting experience: was all this excess really my personal norm??  Picture1So help me, it was.  This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore.  But why didn’t they know how abnormal it really was?  Don’t they know what the rest of the world eats and where they find it?  That most people alive today (or at any time in history) could never imagine a place like this?  Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all?  Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?

Strangers in Our Own Land.  Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing. 

It was hard to get over how clean the world suddenly seemed.  Like a movie set, because it couldn’t really possibly be that clean.  The streets and houses are clean.  The air is brilliant; sweeter than I had imagined.  Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight.  We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure.  Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates.  Picture12 But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.

There is not so much litter here in the U.S., and not so much dust.  We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China.  (No exaggeration: our East China home dusted in the morning was saturated again by evening.  But then again, we all know what dust is mostly made of—dead skin cells.  There are more than a billion people crowded along China’s East Coast; you can do the math.)  Nature in the U.S. is spectacular.  The grass really is greener; the sky improbably blue.  The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it.  And yet we also have to remember not to look directly at the sun, as we so often could in China. 

This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky.  But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood!  We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school).  And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance. 

Picture11My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling.  But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed.  At first, the teachers didn’t know what to do with his hesitation to act independently.  “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!”  After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition.  And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.

Cultural Pride and Cultural Shame.  Public safety and sanitation is different here.  It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along.  I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China.  I no longer worry about giving my child medicine when he is sick.  That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown.  I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.

But there are also moments of immense cultural pride.  I cannot boast enough about American tap water, Picture6with which we are all hopelessly in love.  Drinking directly from the sink never gets old, and Oregon water is especially heavenly.  My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried.  We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water.  Nothing!  (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)

Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water.  It feels excessively wasteful.  It boggles my mind to see people using it to sprinkler lawns and wash cars.  “No, no,” I think, “are you crazy?  You could drink that!”  But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash.  Which is obviously insane, especially in the arid West.  I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore. 

At Home in America.  Our neighborhood is lovely with trees and grass and wildlife, but strange with people.  It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car.  If you don’t walk a dog, it’s easy to never see neighbors face to face.  In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers.   Public spaces are alive with community in China, but here, we are much more isolated.  We live close to our neighbors, but with little random interaction.  With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience. 

China Sept 2011 453 Qingdao cityscapeAmericans are so alone, my visiting Chinese students tell me from their disbelieving vantages points.  Public spaces are so empty by comparison.  The country is so empty, with vast unpopulated tracts of land.  “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind.  One student has his own room for the first time in his life—and he hates it.  There is nobody to talk to.  Nobody to care if you are even there or not.

While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first.  But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore.  A little dirt won’t hurt, we tell ourselves; how bad could that floor really be?  (There’s barely even any dust!)  And for that matter, why bother with organic?  Why sweat the preservatives?  After our year abroad, we have been fully absolved of the illusion that our bodies are temples. 

But our house—goodness gracious—is ridiculously, shamefully big.  I was deeply embarrassed when my Chinese students came to visit us in December.  I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays.  Picture8But at the same time, I cringed at the thought of showing them where I live.  I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives.  True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.

That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it.  It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone.  I returned from China with bursitis in my hips because Chinese beds are so hard.  But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests.  There is wall-to-wall carpeting, with padding beneath.  On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable.  Embarrassingly, my body wilted into the cushions like a crying child to her mother.  My fallen arches stopped screaming about the constant concrete floor underfoot. 

Of course, this too is purely a matter of culture.  One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft.  Everything in the US is so unbearably soft, he complained—even the floors are soft!  “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.

Freedoms for Granted.  The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet.  Tiananmen.  Terrorism.  When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration.  What our parents tried to teach us about our roles in the world. 

My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself.  In the wake of Tiananmen, these were survival instructions.  They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background.  Picture4Then they asked me what my parents taught me while I was growing up.  I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary.  We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.

In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague.  I could write freely.  I didn’t have to be purposely ambiguous about connecting names with events or statements.  I could make full sentences rather than mnemonics.  For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing.  I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.

I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home.  After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely.  My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email.  But now, nothing I said could hurt anyone anymore.  I could relax!  But no, I couldn’t relax.  It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.

Between Worlds.  So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left.  Supermarkets aside, it was remarkably easy to rejoin American culture.  Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules).  I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time.  I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away.  I knew how to operate American culture like an expert.  It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside. 

Yet reverse culture shock sneaks up on you.  A few weeks after we got back, I fell into what I can only describe as a brief but intense depression.  I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to.  I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer.  Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home! 

But these were guilty pleasures, most, because of course life is nicer in the first world.  Back now to that dizzy place.  How to feel about all this?  What about those we left behind?  So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind. 

Then again, I know I’m not really leaving it all behind.  Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now. 

Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed.  As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college.  As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year.  He was so proud to be Chinese again, if only for the day.  Picture17 The next day, he was happy to be an American again, romping freely around the neighborhood playground.  So yes, he is a clearly a child of two worlds now. 

And in some smaller way, I guess I am too.

 

--Erin Ryan

March 27, 2013 in Air Quality, Asia, Current Affairs, International, North America, Social Science, Sustainability, Travel, US, Water Quality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2012

Rethinking Sustainable Development, ELC Essay #4: Making Sustainability Count

Sustainability is an increasingly important concept in environmental and climate-change law. To the extent sustainability means that people should reduce their environmental impacts and shrink their carbon footprints, it seems that the increased focus on sustainability offers significant promise. But it is unclear that sustainability has that meaning; indeed, the term sustainability has become so ubiquitous and amorphous that it seems to have no common meaning. That might not matter very much when the idea of sustainability is used to promote gratuitous or individual acts of environmental stewardship. However, successful climate-change mitigation will require greenhouse gas emissions and atmospheric carbon dioxide concentrations to reach specific numeric levels. If governments replace quantifiable emissions reduction targets with ambiguous sustainability goals, this could undermine long-term efforts to reduce greenhouse gas emissions and mitigate climate change. Therefore, in the context of climate change, it is critical that governments make their sustainability programs count by measuring the benefits of their sustainability measures.

Over the past several years, a number of cities around the country have adopted climate action plans to reduce municipal greenhouse gas emissions. Many of these climate action plans focus on similar sectoral emissions-reduction strategies, such as reducing vehicle miles traveled by steering people away from single-passenger car trips; reducing waste-related emissions by encouraging composting and recycling; encouraging energy efficiency and localized renewable energy production; and encouraging other mitigation strategies such as tree planting, urban gardening, and other activities to reduce urban heat (and thereby reduce the need for air conditioning). Although these strategies may have significant potential to reduce urban greenhouse gas emissions and mitigate climate change, cities often fail to quantify the anticipated reductions the strategies will produce. Even where cities can point to emissions reductions they have achieved—for example, Portland, Oregon, has lowered its emissions to 1990 levels after pursuing elements of its climate action plan—they typically do not link emissions reductions to specific measures. Instead, cities have begun to promote the general concept of sustainability rather than develop specific strategies to meet the numeric metrics in their climate action plans.

Why should this matter? After all, if a city can show that it is simultaneously implementing a climate action plan, becoming more “sustainable,” and reducing greenhouse gas emissions, it would seem that sustainability efforts deserve praise. The problem, though, is that climate-change mitigation ultimately relies on numbers: to avoid temperature increases above 2°C, scientists estimate that global carbon dioxide concentrations must fall back to 350 parts per million (which may actually be too high), which requires quantifiable emissions reductions measured in tons of carbon dioxide equivalent. If cities are serious about mitigating climate change, they need to link their plans to quantifiable targets. Sustainability should not be exalted at the expense of governmental accountability.

That does not mean that sustainability (whatever it may mean) should not play a role in climate-change mitigation. Local climate action plans may help promote and reinforce behavioral norms necessary for societal changes that comprehensive climate-change mitigation demands. City leaders in Portland, Oregon, and New York City have tapped into the idea of sustainability to garner support for those cities’ climate plans, to encourage participation in the cities’ sectoral mitigation efforts, and to change the culture in ways that could lead to deeper emissions cuts over the longer term. The vague concept of sustainability seems to promote participation and buy-in from residents in those cities, because it provides city residents positive reinforcement as they work to improve their communities.

This concept of sustainability—that it serves to promote good will and emotional benefits—may seem weak. But research has shown in various contexts that positive reinforcement and messaging may do more to promote behavioral change than scolding and shaming do. For example, voter turnout efforts that emphasize the civic benefits and positive aspects of voting have a greater impact than efforts designed to play on voters’ fears and anger, contrary to some social scientists’ expectations. If government leaders use the concept of sustainability as a positive, upbeat strategy to enlist urban residents in climate-change mitigation efforts, this could help change societal norms. Changing norms, in turn, could allow city leaders to take more aggressive measures to achieve their quantifiable targets.

To make sustainability count in the climate change context, we should insist that cities establish quantified emissions targets and demonstrate that their sectoral strategies will achieve these targets. The concept of sustainability can help cities implement their climate action plans, but it should not displace a quantified approach.

-- Melissa Powers

December 6, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability, US | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity

This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance.  (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.)  The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity.  The final installation will conclude with thoughts about some ancient philosophical roots of these differences.

Cherry Picking with the Xin Family 190I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series.  I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience.  Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards.  So I offered the important qualification, which I share here once again, that:

My observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.  But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here. 

From there, 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. 

Conservation.  Take our shared goal of conserving natural resources.  Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S.  (Then again, China also built a coal-fired power plant a week in recent years, or more.)  But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation. 

On the example of climate policy, the American challenge has been achieving a consensus for rational policy.  Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies.  For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress).  Cap and Trade Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness.  The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation.  (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009.  [Photo courtesy of The Chicago Dope blog.])  Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).

In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation.  In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues.  In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement.  Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory).  Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas.  Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels). 

Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans.  China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit.  Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives.  From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it). 

Circular EconomyIn China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large.  The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions).  In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao).  China Sept 2011 399Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum. Qingdao Brewery 071

It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising.  Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes.  And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash.  There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper).  And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc.  There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.

Stewardship.  Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives.  A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives.  But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance.  It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe.  Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors.  The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.

Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty.  Shoes are often left at the front door.  Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like.  But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold.  This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.

Crossing the outer threshold onto the street reveals an even more dramatic difference.  In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets Dylan's Kindergarten 003but mountain trails and otherwise beautiful beaches.  Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem.  Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods.  A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles. 

Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning.  I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors.  People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job.  But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes.  And there is no street-cleaner for the narrower village streets, forest parks, or beaches.

Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens.  Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter.  The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day. 

Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it.  In many places, it’s a culturally permissible thing to do.  We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there.  Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often.  Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S.  But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.

Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement.  But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message.  Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training.  Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers.  In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 yearsUrumqi-Taiyuan-Qingdao (X-Country Flights) 101 But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits.  Which leads to different kinds of environmental problems. 

I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate.  Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down.  I’ve seen parents allow their children to relieve themselves into large potted plants at airports.   I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid.  It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing.  A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs. 

With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place.  The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what.  A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes.  I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them.  Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched.  Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth.  By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).

Here’s the thing.  If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management?  If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air?  Water-Pollution The potential implications for environmental law are obvious.  Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge.  Professional polluters aren’t just doing it because it’s cheaper than the alternative.  They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.

Scarcity.  The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy.  Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development. 

Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that.  My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources.  Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time.  Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones? 

In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction.  One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture.  Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in.  Using tweezers and tiny metallic wire, he got it working again.  The man knew how to fix virtually anything—because he had to.  At the time, there was no alternative but to fix things, over and over again.  But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way.  For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely. 

Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China.  At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”).  KFC ChinaBut I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste.  Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment.  They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.

The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West.  One possible example that often confuses foreign visitors is the way that Chinese tend not to queue.  There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one.  There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter.  Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane.  My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference.  (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…) 

Why no tradition of lining up?  One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need.  This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas.  That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources.  October 2011 Zoo--Sunset through Ocean fog So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…

[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]


--Erin Ryan

 

November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2) | TrackBack (0)

Wednesday, September 12, 2012

China Environmental Experiences #6: Environmental Philosophy and Human Relationships with Nature

       This is the sixth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.  This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world. 

       October 2011 Zoo--Sunset through Ocean fog 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.  With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series.  At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).

       These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating.  Every culture has elements that are puzzling, even troubling to those outside it.  (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!)  Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject. 

       Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
      
       But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.  They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions.  This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law. 

       The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with Chengdu 208grandmothers.  So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself.  We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment.  But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices? 
      
       From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons.  We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations. 
      
       We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs.  Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies.  Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate. 

       Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances.  They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness.  But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world. 

Muir Wilderness Heart Lake       This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification.  Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone.  We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964).  Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles. 
      
       To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system.  They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks.  But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation.  After all, there are roads all over the world!  But there is only one Grand Canyon.

  Chinese landscape painting      Most modern Chinese see the human relationship with nature very differently, and from the bottom up.  Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role.  There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true.  But today, in both government policy and popular consciousness, the balance appears reversed.  By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature.  Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state.  The Chinese, perhaps, have been on an opposite trajectory.
      
       Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty.  After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means.  In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales.  In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs.  To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded.  For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean.  But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
      
       Again, part of the reason for this doubtlessly comes from the pressure of managing such an China Sept 2011 465immense population on such a comparatively small chunk of land.  After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States.  The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people.  The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population.  This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space.  Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity. 
      
       Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population.  And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness.  But by and large, most Chinese people don’t.  Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it.  Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy. 

       Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival.  New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel.  Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together.  But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness.  It was just, in some regards, a different kind of peace.

       Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world.  But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic.  They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons.  The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.”  In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural Turpan Karez 2environments.  As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert.  The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.

Dujiangyan-Irrigation-System-9       Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China.  More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China.  Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation.  Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.

       Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness.  You can see it in the stunningly beautiful Chinese gardens Chengdu 430 of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi.  These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art.  Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers.  Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens.  But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.

       In fact, the Chinese preference for heavily mediated nature extends even to their own national parks.  Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon.  I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest Xinjiang - Tianshan Tianchi 046China.  I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit.  They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi. 

       Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake.  But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside.  It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see.  (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.) 
      
       At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps.  That is, except for the crackling speakers—poorly camouflaged as tree Xinjiang - Tianshan Tianchi 070stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience.  And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music.  As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson.  “Bad,” I believe.  Followed by Abba.  (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)

       To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly.  There is no trail around the lake, she insisted, and she’d been giving tours here for five years.  I would later confirm that the Xinjiang - Tianshan Tianchi 071trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it.  It’s just not part of what they want from their encounters with wilderness.  Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."  

       Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape.  But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country.  Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind.  My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest.  We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails.  But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
      
       Learning from that mistake, I later used the Internet to research a spectacular trail alongside a January - New Year and Yunnan 765majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet.  Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it.  I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists January - New Year and Yunnan 764 used it.  They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas.  As long as I live, I will never forget that hike.  But as far as I can tell, most visiting Chinese will never take it.
      
       I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.”  Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate.  The closest Chinese word would be “pa-shan,” which means to climb a mountain.  But in China, most mountains are climbed on paved trails and stone staircases.  In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit.  When I first arrived in Qingdao, I was delighted to discover that the Laoshan Mountain 088small mountain behind my neighborhood didn’t have one.  But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops.  This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.

       As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness.  I long for earthen trails, and not for piped-in music.  Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation.  Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail.  And they often lead to spectacular temples and contemplative pagodas nestled among the hills, Cherry Picking with the Xin Family 181 a classical and undeniably beautiful feature of traditional Chinese culture.  Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it.  For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...

[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]

--Erin Ryan

 

September 12, 2012 in Asia, Current Affairs, Forests/Timber, Governance/Management, International, Land Use, Music, Travel, US | Permalink | Comments (0) | TrackBack (0)

Friday, July 20, 2012

Spending Power Bargaining After Obamacare

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future.  After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.

By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid.  Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others.  Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.

These partnerships reflect the complex way that the Constitution structures federal power, through We the People both specific and open-ended delegations of authority.  Specific congressional powers include the authority to coin money, establish post offices, and declare war.  More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks.  Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority.  (Of course, there is some overlap between the two, but that’s another story and a previous blog.) 

The Spending Clause authorizes Congress to spend money for the general welfare.  Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence).  Sometimes, Congress just funds state programs that it likes directly.  But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see.  In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children). 

In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach.  A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law.  Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.

Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal.  If they don’t like the attached strings, they don’t have to take the money.  Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration.  In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations.  No law has ever run afoul of these broad limits, which have not since been revisited—until now.

In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it.  All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms.  Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously.  But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled.  Even though they really wanted out, they claimed, now they were stuck.  The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please. 

SCOTUSIn deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership.  Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal.  We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy.  (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”)  Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to.  No coercion, no constitutional problem. 

But then the decision takes a key turn.  What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs.  Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive.  By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion.  To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion.  Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics).  The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.

Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid.  For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.”  She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”

On these points, Justice Ginsburg is right.  The decision offers no limiting principle for future judges or legislators evaluating coercive offers.  “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that.  Moreover, the rule is utterly unworkable.  No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum).  The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge.  And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir. 

Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership.  It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent.  But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding).  The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes.  (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.) 

It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way.  Federalism and the Tug of War Within Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power.  But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system.  Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse.  Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.

Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem.  To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership.  Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review.  But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.

--Erin Ryan 

--A version of this essay first appeared on OUP Blog, and later on ACS Blog

 

July 20, 2012 in Cases, Constitutional Law, Current Affairs, Governance/Management, Law, Legislation, US | Permalink | Comments (0) | TrackBack (0)

Thursday, June 21, 2012

Obamacare and Federalism's Tug of War Within

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the We the Peoplerelationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.

Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?

To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning Flag Mosaicfrom that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.

As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and IJGAlocal government brings useful capacity to the regulatory table.

Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.

But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.

Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.

By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.

The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, Broccoliwould that be okay?)

Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)

This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.

A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.

Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.

The trick, of course, is that while all of these values are independently good things, they are Tug of Warnevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.

Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.

And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.

The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.

In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to Federalism and the Tug of War Withinfacilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.

--Erin Ryan

(An abbreviated version of this essay first appeared on RegBlog, and then on the American Constitution Society, on June 21, 2012.)

June 21, 2012 in Cases, Constitutional Law, Governance/Management, US | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Perpectives on Risk

Today's post is a short one, as I am in transit to my new home at Wake Forest.  But this recent post by David Vogel on RegBlog offers interesting food for thought.   His new book, the Politics of Precaution, considered why precautionary approaches to regulation have shifted:  while the US used to take this approach, today the EU is the leader in precautionary regulation. I wonder whether he addresses the argument that precaution depends on one's perspective.  That is, addressing one type of risk often moves other types of risks to the forefront.  One thing is for certain:  I'm putting the book on my summer reading list. 

- Emily Meazell

May 24, 2012 in Books, EU, International, US | Permalink | Comments (0) | TrackBack (0)

Thursday, May 17, 2012

Call for Papers: AALS Sections on Property and Natural Resources/Energy Law to Host Joint Program

On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA.  This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come.  It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.”  Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.

The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.”  Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges.  The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law).  The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.

Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at Shelley.Saxer@pepperdine.edu by June 15, 2012.  Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers.  Submitting authors will be notified of the results of the selection process by July 1, 2012.  To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012.  The selected authors will be responsible for paying their annual meeting registration fee and travel expenses.  Questions should be directed to Professor Saxer at the above-noted email address.

Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.

-Tim Mulvaney

May 17, 2012 in Current Affairs, Energy, US | Permalink | TrackBack (0)

Tuesday, May 15, 2012

Environmental Law Has Lost a Champion: In Memory of Judge James R. Browning

In this post, I take a hiatus from chronicling my adventures in China to reflect on the passing of a giant of the American legal system, a friend of the environmental movement since its early days, and a beacon for my own spirit, Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.  Judge Browning died last week at age 93, and the world is emptier in his wake. A Montana native appointed by President John F. Kennedy, he served over half a century on the Circuit (perhaps the longest serving federal appellate judge in U.S. history), including twelve years as a particularly beloved Chief Judge.JRB

Judge Browning was small in stature and quiet in voice, and his gentle manner moved all with whom he interacted, from members of Congress to the courthouse cleaning staff. In testament to his crusade for justice and kindness through the legal system, the Courthouse where he sat in San Francisco now bears his name. What follows is taken from an essay contributed to a recent issue of the Montana Law Review celebrating his accomplishments (published a few weeks before his death), in which former clerks were asked to describe the man and his influence on their own development within the law:
 
I began clerking for Judge Browning just as he began his transition from active to senior status after forty years on the bench. I had just graduated from law school, which I had attended after a brief career as a forest ranger near Yosemite National Park. Judge Browning and I shared a love of wilderness and open spaces that somehow bridged his Montana upbringing with mine in New York. Today I am a law professor and at the moment, a Fulbright Scholar in China, studying environmental governance in a system so different from the one in which he first immersed me. To recount the story of his influence since then, there are too many points to begin.
 
I could share what I learned from him about the art (and artifice) of holding a society together by the rule of law, a lesson especially powerful now that I am living in a society that isn’t.
 
I could recount the memorable opinions that we worked on. There was the one preserving a modicum of tribal sovereignty despite centuries of the countervailing trend in Federal Indian Law, in which he deftly wielded precedent to both cut and shield, demonstrating the great common law tradition of pursuing justice within consistency. Or the one upholding sensible environmental regulations against an insensible but novel federalism challenge, resolving perplexing questions that kept me alone in chambers with federalism theory texts for unending days and nights (and which would later fuel my own academic research agenda). Or the case in which he found a remedy to assist the septuagenarian inmate at risk of losing nearly all his teeth to callous neglect by prison staff, even after I had resignedly concluded that there was none.
 
I could recall the simple delights that he took in life, like his ritual mischief of eating a single peanut before reaching the supermarket cash register across from the Pasadena courthouse. He would enjoy the peanut in the aisles but save the empty shell for the cashier, which he politely presented with an impish grin. Then he would insist on jaywalking back to court across the wide boulevard, darting through unsympathetic traffic, even into his 80s.
 
I could talk about the humble but practical choice to make his San Francisco office not in the hallowed Chief Judge’s central chamber, but in the corner meeting room that was smaller but had better sun (such that generations of clerks would, as I did, crawl out of a law library carrel and into the grandest office we would doubtlessly ever inhabit). I could talk about the treasures and secrets that I found improbably hidden within the very walls of that office, where previous clerks had left them over the years—small notes and totems that would momentarily suspend me in the gossamer margin of present between the ghosts of JRB brethren past and spirits yet to come. It is fitting that the building now bears his name, as well as the spirit of collegiality, wisdom, and mercy that he infused into the conduct of justice within it.
 
But my favorite "JRB" tale has nothing to do with the Courthouse, or a case, or even the law. It is about the wisdom he shared when he graciously agreed to officiate at my wedding the following year. We were thrilled that he was willing, as he was already the grandfather I never had as an adult, the mentor I never had in law school, and the sage we all hope for in positions of authority. My fiancé regarded him with similar awe and adoration. We could think of no one better to shepherd us into this next, most important phase in our lives.
 
Judge Browning agreed to marry us, but first we would meet with him to discuss the project. Not of the wedding itself, of course, but the project of our marriage. By that time, he and Mrs. Browning had been married well over half a century, and he clearly had as much wisdom on this issue as anything legal. We met at the Mill Valley Train Station Cafe and dove into the sanctity of the matter over blueberry muffins and hot drinks. He wanted to know why we had chosen to marry, and what we expected of the institution. He needed to know that we were ready, and that we would approach our commitment with the requisite spirit of joy and resolve. This was important to him. He could not preside at a wedding that skewed more toward the flowers and photographs than the sacred bond at its heart. At the end of our meeting, apparently satisfied with our discussion, he gave my husband a wink and the most practical advice of all: “My secret to fifty years of bliss? She is always right!”
 
There were plenty of flowers and photographs at the wedding, which took place in a Sonoma County garden over Labor Day weekend, with happy friends and relatives gathering from all corners of the country. It made no difference to Judge Browning that my husband’s two mothers had made the same level of commitment we would now undertake. It made no difference that our vows referenced a spirituality that was not his own. It made no difference to him that we had implored him to let us arrange his ride, and so he and Mrs. Browning arrived nail-bitingly late as he slowly but safely navigated to our remote garden setting. The only thing that mattered to Judge Browning was the solemnity and joy of the occasion. He presided with a grace, wisdom, and generosity that helped set transcendental foundations for the marriage he helped bring into being. Through the times of solace and difficulty since, we have always drawn on the strength and faith that he infused into our rite of passage.
 
In retrospect, Judge Browning’s contributions to our wedding were not that different from those he made to every case that he helped decide, every law clerk that he shepherded, every aspect of justice that he has helped to administer over the years. In each instance, he never lost sight of the ultimate object of his attention: the people before him. Whether interpreting the principles of constitutional federalism, the doctrine of qualified immunity, or the Sherman Antitrust Act, his considerations—though impeccably informed by jurisprudence—always centered on the individuals who would be impacted. The citizens participating in their own governance. The suffering elderly inmate, and his caretakers who will next time rise to the occasion. The consumers that antitrust laws are designed to protect. The bride and groom, immersed in alternating tides of hope and fear.

Judge Browning always saw the human beings at the center of the circle, and he looked them in the eye. He always wielded the judicial power as a tool for realizing justice by advancing human dignity. Because of his example, countless litigants, attorneys, court personnel, and clerks renewed their faith in the legal system, and in a civil society organized around it. I certainly did. This is, perhaps, his greatest gift.
 
--Erin Ryan

May 15, 2012 in Cases, Current Affairs, US | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2012

The Good and the Bad in the BP Settlement, and the Main Course Still Ahead

 

Blue crab.001I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.

I'd been called for jury duty.

Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.) 

Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution. 

Hard Bargaining Rewarded

The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan. 

Settlement claims are divided into those for economic loss and medical harm.  It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize.  So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.

As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.

The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.

Lost Hope for a Speedy Trial?

I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.

The Main Course

When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.) 

Is their number up? Today, not by a long shot.  But we’ll see.

--Rob Verchick  

April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
  • "Every second breath you take is provided by the ocean."

  • "We have entered a new geologic age -- the anthropocene era."

  • "The Gulf and other coastal waters have long been a dumping ground for human activities."

  • "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."

  • NOAA "has begun now issuing seasonal red tide alerts in the Northeast."

  • "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."

  • "It's not funded, but we have a national ocean policy."
"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council
  • "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."

  • "The economic benefit of the ocean is huge, and it is just beginning to be documented."

  • "Everyone has a stake in the oceans."

  • "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.

  • "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.

  • "Marine mammal issues will increasingly affect marine activities, especially shipping."

  • "We need to balance that growing need for resources and food and energy with those areas that already have resources."

  • "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

  • "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."

  • "The problem is we have one ocean but many governments."

  • "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."

  • "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."

  • "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."

  • "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.

  • Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.

  • "Australia is also using the Reef as a reason to engage in climate change mitigation."
  • An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

After Partial Settlement, Oil Spill Case on a Slow Boil

Appetizer

The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)

On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.

On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.

Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-­‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.

For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-­‐50 billion range. (Take $6 billion in compensation fund pay-­‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?

To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil. 

--Rob Verchick, Loyola University New Orleans College of Law

cross-posted at CPRBlog

 

March 5, 2012 in Cases, Energy, Governance/Management, North America, US, Water Resources | Permalink | TrackBack (0)

Monday, February 20, 2012

Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?

The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.

1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.

2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.

3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.

 Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.

~~Deepa Badrinarayana

February 20, 2012 in Agriculture, Air Quality, Asia, Climate Change, Current Affairs, Economics, Energy, EU, International, Law, North America, US | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2012

Teaching Sustainability by Example

The idea of fostering environmental literacy among students is important to human well-being.  As such, it is promising to learn that public and private schools across the nation have been busy greening both the curriculum and educational facilities.  States now commonly adopt and follow environmental literacy standards in public schools or participate in sustainability programs (such as, for example, Florida, Illinois, Kentucky, Maryland, and Wisconsin).   EPA’s recent issuance of the voluntary School Siting Guidelines promotes sincere consideration of environmental factors in siting decisions.  Reporting on innovative sustainability educational programs and tools has been increasingly active and grown with the development of reporting tools by the Association for the Advancement of Sustainability in Higher Education and others.  

This post focuses on efforts to provide healthy and low-impact school buildings and recognizes that green school buildings lead to healthier students that can learn by the examples set by educators.  As recently reported by the National Education Association, “Green schools cost $3 more per square foot, but generated $74 per square foot in benefits from energy savings, increased attendance, and teacher retention.” The U.S. Green Building Council's (USGBC) Center for Green Schools released its first annual Best of Green Schools list.  The List recognizes significant accomplishments in creating sustainable learning environments in 10 categories.  Relevant factors include efforts to occupy green-certified buildings, create collaborative sustainability programs, increase the sustainability in school infrastructure, improve departmental efficiency and inter-departmental interaction, and engage in energy conservation and other cost savings.  The categories and recipients are as follows:

1)      Best Moment for the Movement

The U.S. Department of Education has been recognized in the Moment for the Movement category for its Green Ribbon Schools program.  On the blog of the Department of Education, Secretary of Education Arne Duncan encourages educators, parents, and administrators to engage in the process of identifying the schools that will “have no environmental impact, make a positive effect on students’ health, and enable students to become environmentally literate citizens who are well prepared for the 21st Century economy.”  The Green Ribbon awards program recognizes schools for their combined achievement (or progress) in three areas: 1) energy efficiency; 2) student and environmental health; and 3) high quality education in environmental literacy.  At least 33 states, Washington D.C. and the Bureau of Indian Education have announced plans to participate in the program.  (See Michigan’s recent announcement here)

2)      Best Region

Sacramento’s Mayor Kevin Johnson has organized the Sacramento region, recipient of the Region award, to pursue a shared vision “to transform the Sacramento region into the Emerald Valley – the greenest region in the country and a hub for clean technology.”  The effort has included schools as a focus for improvement, both in the content of education and educational facilities.  The Greenwise Regional Action Plan includes a policy to create a $100 million revolving loan fund for green school retrofits across the region.    

3)      Best State

Ohio school planners are no stranger to sustainable initiatives. The State of Ohio received the award in the State category for its outstanding commitment to healthy learning environments.  The USBGC reports that Ohio leads the nation with 315 LEED registered and certified projects.  The effort continues and is encouraging other green school projects. 

4)      Best City

Philadelphia, which oversees the eighth largest school district in the country, is recognized in the City category for its focused efforts to improve the sustainability of the City’s school facilities.  With help from the Delaware Valley Green Building Council’s Green Schools Circle, the School District of Philadelphia has committed to seeking certification at LEED Silver or higher for all new construction projects.  The District has also adopted a plan to green the city’s existing 291 public schools.  The District boasts the Thurgood Marshall Elementary School as the state’s first LEED certified existing building and the Kensington High School for Creative and Performing Arts, which was recognized as the first public high school in the nation to achieve LEED Platinum certification. 

5)      Best School

The School award was given to Lake Mills Middle School in Lake Mills, Wisconsin.  In March of 2011, Lake Mills Middle School became the nation’s first public school to achieve LEED Platinum certification. The building improvements were completed $700,000 under budget and included a 36,632 square foot renovation and a 59,865 square foot expansion, native landscaping to facilitate studies on biodiversity and ecology, preference for local materials, and efficient heating and cooling systems.

6)      Best Higher Ed Innovator

University of Texas at Dallas was recognized in the Higher Education Innovator category for their LEED Platinum Student Services Building. Occupants of this four-story, 74,000-square-foot building benefit substantially from natural sunlight and views to the outside. The USBGC reports that the building has an annual electrical savings of $60,000.  Rick Dempsey, associate vice president for business affairs and the facilities management and campus sustainability officer, notes that the Student Services Building may serve as a launching point: “[B]y taking into account environmental considerations and future operational costs, the building exceeded our performance goals and has allowed us to envision new ways of creating sustainable new space on campus.”

7)      Best Collaborator

In the Collaborator category, Kentucky is recognized for driving collaborative support for green schools.   Rep. Jim DeCesare (R) and Rep. Mary Lou Marzian (D) are credited for forming the Kentucky Green Schools Caucus as a catalyst for forward-thinking state legislators to coordination and education on the benefits of green schools and facilitating bipartisan participation in green school resolutions.   

8)      Best Convenor 

Boston Mayor Thomas Menino was recognized in the Convenor category for drawing an impressive interdisciplinary crowd of researchers to the Research Summit on Childhood Health and School Buildings.  The attendees at the Summit debated and explored the relationships between school facilities, student health, and academic performance.   The Summit adds to Boston’s wide range of improvements in public and private educational facilities.

9)      Best Policy Maker

The District of Columbia City Council was recognized in the Policy Maker category for its passage of the Healthy Schools Act of 2010 and 2011 updates.  The 2011 updates included a commitment to become the first participant in the U.S. Department of Education’s Green Ribbon Schools program. The District has established itself as a leader by adopting goals and guidance pertaining to student indoor and outdoor health, student access to meals and physical activities, Farm to School programs and health education, and sustainable buildings and premises. 

10)      Best K-12 Innovator

The K-12 Innovator award recognizes the public-private partnership resulting from the Illinois’ General Assembly’s October 2009 adoption of House Joint Resolution 45 (HJR 45).  In March of 2011, the HJR 45 task force issued a report that inventoried the financial and physical resources of the school system, reported on sustainability surveys and case studies in furtherance of best practices among Illinois schools, and envisioned resources and strategies to implement the Environmental Literacy for Illinois 2010 Strategic Plan.   

- Keith Hirokawa

February 1, 2012 in Law, Sustainability, US | Permalink | TrackBack (0)

Friday, January 27, 2012

Electric Power in a Carbon Constrained World

UntitledThere are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:
Registration is available here. If you cannot attend in person, the program will also be streamed live here.

-Lincoln Davies

January 27, 2012 in Air Quality, Climate Change, Current Affairs, Economics, Energy, Land Use, Law, North America, Sustainability, US | Permalink | TrackBack (0)

Friday, January 13, 2012

ABA's 41st Annual Conference on Environmental Law

The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City.  If you have not been before, this is one of, if not the, premier environmental law conferences in the nation.  (If the weather turns right, there could also be really great skiing.)  The conference used to be known as the "Keystone Conference."

As usual, there is a fantastic line-up.  Just a few samples include:

  • Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions

  • Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption

  • Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal

  • Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion

Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).

To register, go to the conference website.

-Lincoln Davies

January 13, 2012 in Current Affairs, Energy, Land Use, Law, North America, Sustainability, Travel, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Thursday, December 1, 2011

Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?

When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.

Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?

The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).) 

Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co.,  (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).

No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)

Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.

First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.

PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.  

Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.

As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?

From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.

Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.

December 1, 2011 in Current Affairs, Governance/Management, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)