Tuesday, October 26, 2010

Crude Justice screening at South Texas

South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!).  The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue.  After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion.  The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society.  Here's the blurb for the film:

Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself. 

Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.  

Matt Festa

October 26, 2010 in Beaches, Coastal Regulation, Conferences, Environmental Justice, Environmental Law, Houston, Judicial Review, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 30, 2010

A Report on the Impacts of Deepwater Horizon

I've blogged before about an informal "2nd Friday Symposium" held by the River Basin Center here at UGA.  I wasn't able to attend the most recent event, so I asked Land Use Clinic student Greg Raburn to report.  Here's his summary (and accompanying culinary notes):

The convivial meeting started at 4:00 p.m., but, by the time I was able to get out of class, burn the roof of my mouth on a hastily-heated corn dog, and drive to the River Basin Center, the discussion had already begun  The room, which had the appearance of some type of student lounge, was nearly full, and the speaker, who must have been Professor Chuck Hopkinson of Marine Sciences and Director of the Georgia Sea Grant, with beer in hand, was describing the statistics and findings displayed on the projection screen.

He noted that while Savannah, as befitting one of the top U.S. seaports, was being monitored for contamination, Georgia’s southeast coast was not.  The oil, if or when it appeared on Georgia’s beaches, he stated, would probably look like tar-balls (which were essentially asphalt, he explained) or micro-droplets, and he and his group had made recommendations to Congressional staffers for detecting the presence of the oil and monitoring it.  He said much of the Gulf data was being collected by robotic “Seagliders,” manufactured by iRobot (the makers of the “Roomba” robotic home vacuum cleaner).  The gliders were designed to “glide” to the bottom of the ocean, collecting data from their surroundings, and then rise to the surface and transmit the data.  In addition to recommending using Seagliders off the Georgia coast, his group additionally recommended using fluorescent sensors, doing tar-ball counts, monitoring “sentinel” organisms, and utilizing satellite monitoring to collect additional data.

The next part of the discussion centered on the National Oceanic and Atmospheric Administration’s leaked press release which had stated that 74% of the released oil was “gone.”  The report naturally raised the question:  if 74% of the oil was truly gone, where did it go?  The press release claimed that 25% of the oil had dissolved or evaporated, 16% had been naturally dispersed, 8% had been chemically dispersed, 17% had never entered the water (captured at the surface), 5% had been burned, and the cleanup efforts had captured 3%, and therefore only 26% of the oil remained in the ocean.

Professor Hopkinson’s group decided to evaluate the data themselves.  The first thing they did was discard the figure for the 17% of oil that never entered the water; if some oil never entered the water, they felt it was misleading to include it on a report about the status of the oil in the water.  Professor Hopkinson’s group also figured in “degradation,” which, based from data from the Ixtoc oil spill off the coast of Mexico in 1979, was estimated at about 4%-8%.  His group ultimately concluded that the oil was not “gone,” but that most of it had simply changed into a form that rendered it uncollectable.

The University of Georgia and the Georgia Sea Grant testified before a [Georgia] Senate subcommittee regarding Georgia’s vulnerability to the oil spill.  The Senate subcommittee charged the Georgia Department of Natural Resources to develop an oil sampling plan.  Three things were to be sampled:  water columns, hard bottom, and fish.  If oil were found in these things, then two additional things would then be sampled:  sediment and hydrodynamics.  Unfortunately, I am unable to provide further details on this part of the discussion, as it went well beyond my limited knowledge of marine science and ecology.

As a side note, Professor Hopkinson also observed that British Petroleum (BP) is selling or has sold off its terrestrial U.S. wells, put its shallow water wells up for sale, and is currently expanding its deepwater drilling in areas with little regulation, such as Africa and Brazil.  He suggested this could have been a counterproductive consequence of the recent U.S. sanctions on BP and the restrictions on deepwater drilling.  He pointed out that the well currently being drilled in Brazil, will be at almost twice the depth of the Deepwater Horizon.

Professor Hopkinson closed by saying that the University of Georgia Sea Grant website on the oil spill could be found at oilspill.uga.edu, with additional information at www.southatlanticseagrant.org, www.deepwaterhorizonresponse.com,  and www.restorethegulf.gov.

In conclusion, I found the science and statistics of the discussion to be rather interesting.  I had to glean the meaning of much of the technical language from the context in which it was used.  The symposium was definitely geared toward someone with more of a background in environmental and marine science than myself, but the group was open and friendly, and a small variety of refreshments were available – including a bowl of dried, multicolored, tubular things that, in size and shape, resembled McDonald’s French Fries.  I had to try one.  It tasted kind of like a pretzel.  I still have no idea what it was.

Jamie Baker Roskie

September 30, 2010 in Conferences, Environmentalism, Georgia, Oil & Gas, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Sunday, July 25, 2010

Chapman on the Ontological Problem with Sovereignty

Chelsea Chapman (Wisconisn--Anthropology) has posted The Ontological Problem with Sovereignty: Indigenous Nations, Territoriality, and the Making of Natural Resources in Alaska.  The abstract:

Congressional resolution of Alaska Native land claims in the 1970s, driven by a discursive collusion of carbon crisis and neocolonial urgency to build the Trans-Alaska Pipeline, has created a substantively different legal and economic relationship between Alaskan indigenous nations and the state than that which exists for Lower 48 tribes. It has also resulted in increasingly intense inter-tribal and intra-organizational conflict over environmental governance, development, and energy, most recently culminating in a January 2009 heating oil crisis in rural villages throughout the state. In this paper, cultural conceptions of fossil energy held by young indigenous anti-development activists from Gwich’in and Koyukon tribal villages are contrasted with those held by energy analysts in Doyon, Ltd, interior Alaska's largest regional Native corporation. The villages rejected the Alaska Native Claims Settlement Act and their citizen activists now provide counter-narratives of sovereignty and ‘natural resources’ that not only diverge from those held by Doyon members, but also illuminate indigenous diversity in conceptions of energy as category. Narratives of last winter’s rural crisis demonstrate how fossil energy is conceived of in culturally distinctive ways by Alaska Native environmental activists, policy makers, and energy analysts. Further, their evaluations of energy covary with diverse legal relationships between village governments, the corporations, and the state. By investigating fossil energy as a total social fact, critical ethnography can illuminate the multiple cultural understandings of relational sovereignty and energy that inform indigenous conflict in Alaska.

Matt Festa

July 25, 2010 in Development, Environmentalism, Federal Government, Local Government, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 9, 2010

BP Blowout Lecture Series at Tulane Law

From Oliver Houck:

We will be preparing a series of background lectures on the BP blowout this fall at Tulane Law School, covering basic tech, engineering, science, law and policy issues.  They will set a stage for several courses on BP-related issues (environmental, admiralty, energy…), and for research projects for students interested in participating for credit.  The lectures may be of interest to you and your students as well, and we will set up a system to “stream” these lectures live to other schools, as you may wish (unfortunately, we cannot do Q and A with you from this classroom). We will also be happy to share ideas for related research topics, if and as you wish.

The program, subject to changes but at this point firm, is reflected in the notice that follows:
FALL, 2010


The purpose of this series is to provide background on technical, scientific and policy aspects of the BP blowout, including deep water drilling; the blowout; the Gulf of Mexico ecosystem; oil, water and cleanup; containment responses; biological impacts; community impacts; legal issues; and policy implications beyond BP.  The lectures (with Q and A following) will take place in room 110 of the law school, 6329 Freret Street, New Orleans, on Monday afternoons, from 4 – 5:15 pm, with exceptions noted.  While Tulane law students may participate in this series for academic credit with the satisfactory completion of additional work, it is intended equally for all students and the interested general public.  There is, of course, no admission.  For further inquiry, please contact Professor Houck at ohouck@tulane.edu (after August 5) or Forest Wootten, 2L, fwootten@tulane.edu.

Jamie Baker Roskie

July 9, 2010 in Beaches, Coastal Regulation, Environmental Law, Oil & Gas, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 2, 2010

Wiseman on Hydraulic Fracturing and Regulation in Appalachia

Another interesting article from Hannah J. Wiseman (Texas): Regulatory Adaptation in Fractured Appalachia, a symposium contribution forthcoming in the Villanova Environmental Law Review.  The abstract:

America faces a growing energy challenge. We require energy for our every activity, yet we increasingly recognize that there are no easy energy solutions. Reliance upon traditional fossil fuels - many of them imported - jeopardizes our national security and releases harmful emissions, yet renewable energy technologies require high capital investments and have environmental impacts of their own. As we address this challenge and move toward a more sustainable energy future, “bridge fuels” like domestically-produced natural gas offer a near-term compromise between renewables and traditional fossil fuels. A growing quantity of bridge fuel in the form of domestic natural gas is produced from American shales through a process called hydraulic fracturing, and this practice is booming in the Appalachian region. Some residents of this region are now asking how this type of extraction can and should occur while adequately preventing potential harm to their health and their natural resources. This Article investigates how state regulation has adapted to address this concern and argues that regulations should change in some areas; it suggests steps toward state regulatory improvement and briefly explores additional federal options. The Article concludes that improved regulations, in addition to ongoing studies of risk, are important to effectively balance the continued extraction of this essential bridge fuel and the need to address public concerns, as well as to serve as a model for future regulatory transitions in the energy area.

Matt Festa

June 2, 2010 in Environmental Law, Federal Government, Oil & Gas, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

Tulane's Environmental Clinic Under Attack

Recently I posted about an attack by the Maryland legislature on the environmental clinic at University of Maryland.  Now the environmental clinic at Tulane is under similar fire.  Here's a quote from a recent Times-Picayune article (shared with the environmental clinicians by Tulane Environmental Law Clinic Director Adam Babich) :

Since 1989, third-year Tulane law students at the clinic have represented clients in lawsuits against chemical companies, landfills, energy companies and other industries. Among other issues, the cases have dealt with wetland protections, zoning and permitting issues, and violations of environmental regulations on clean air and water. LCA chief Dan Borne and Sen. Robert Adley, R-Benton, say those torts are job killers, and they cast Adley's Senate Bill 549 as a reasonable way to put a stop to excessive litigation damaging to the Louisiana economy.


As it was introduced, Adley's bill would block university law clinics at any school that receives state money from suing a government agency or representing a client who is suing a private defendant for monetary damages. Adley said he plans to propose an amendment today that would limit the restrictions to environmental law clinics, effectively limiting the bill to Tulane.

As I recently e-mailed Adam, I guess it's good when your opponents are really clear that they want to take you out.  It does seem that this bill doesn't have much political traction, particularly in light of the Gulf Oil Spill:

"I think it's bad public policy to single out a group like this," Sen. Danny Martiny, R-Kenner, said. "It amazes me that the chemical industry would pursue this when we've got all that oil out in the Gulf."

Sens. John Alario, D-Westwego, A.G. Crowe, R-Slidell, and Nick Gautreaux, D-Abbeville, noted that their districts include fishers and others who have been affected by industry in the past or could have claims in the wake of the oil spill, though many of those clients likely could hire private-sector attorneys on contingency. Alario and Gautreaux said they oppose the bill. Gautreaux said, "Maybe the attorney general should hire Tulane law students to sue BP. If they can scare the chemical association this bad, then they can scare BP, TransOcean and Halliburton."

Crowe said he "has a real dilemma" and is generally reticent about a proposal that could potentially limit his constituents' access to adequate counsel.

Commerce Committee Chairwoman Ann Duplessis, D-New Orleans, cited "the poor people in my district" who have, with the help of the Tulane clinic, beaten back attempts to locate landfills in eastern New Orleans.

The closest to a "yes" vote the LCA has gotten so far is from Sen. Mike Michot, R-Lafayette, who said he's going to listen to both sides. Michot said he's heard from constituents who were represented by Tulane students. But, he said, "There has to be a balance. ... I'm going to listen to both sides."

The Clinical Legal Education Association and the Society of American Law Teachers have both come out against this bill, as has Tulane's president.  I'll post an update after the hearing.

Jamie Baker Roskie

UPDATE: The legislature effectively killed the bill through total lack of support. Read the story here.

May 19, 2010 in Environmental Law, Oil & Gas, State Government, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 11, 2010

Victor Flatt Contrasts Deepwater Horizon and Cape Wind

Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.

The confluence of both these events also illustrates a move in the direction of the public good over the private good. Despite claims to the contrary, it is rarely the general public that is clamoring for more offshore oil drilling. While many people might like to have lower gasoline prices and reduced dependence on foreign oil, when the public actually sees the trade-offs in price, few make offshore drilling a priority. The political push for offshore drilling comes from the companies themselves, which realize profit through the recovery and processing of this product. Cape Wind also hopes to realize a profit, but it also has significant support from a public that wants to see viable greenhouse-gas-free energy become the norm. The public's clamor was enough to overcome even the most politically well-connected private opposition to Cape Wind, and this signals the breaking of a logjam. More and more approvals will be forthcoming, and this will transform the energy landscape.

Jamie Baker Roskie

May 11, 2010 in Beaches, Clean Energy, Federal Government, Oil & Gas, Water | Permalink | Comments (2) | TrackBack (0)

Monday, May 10, 2010

"One Stop" Web Site for Gulf Oil Spill

From Robin Craig at Florida State:

A fairly impressive collection of departments and centers among the Florida
universities are putting together what should become a very helpful one-stop web
site for information on the Gulf spill, hosted (so far, at least) on Florida
State's web site.   Soon there will be links to specific information on
ecological impacts, economic costs, the scope and path of the spill, underwater
and surface photos, data sets, and a legal page (I authored the draft of that
today), all with links to further information.

 The site was officially launched this afternoon and will be growing
quickly.  If you're interested in following events, I'd recommend bookmarking
the page and checking back frequently as the site develops.

See the Oil Spill Academic Task Force website here.

Jamie Baker Roskie

May 10, 2010 in Beaches, Environmentalism, Oil & Gas, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

Salkin on Renewable Energy and Land Use Regulation

Patricia Salkin (Albany) has posted a two-part piece on SSRN: Renewable Energy and Land Use RegulationALI-ABA Business Law Course Materials Journal, p. 47, February 2010.  Here is the link to Part 1 and its abstract:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

Part 2 and abstract:

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Very relevant and timely.

Matt Festa

April 13, 2010 in Clean Energy, Environmental Law, Green Building, Local Government, Oil & Gas, Property, Scholarship, State Government, Wind Energy | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 16, 2010

Benson on Adaptive Management Approaches by Resource Management Agencies

Melinda Harm Benson (New Mexico) has posted Adaptive Management Approaches by Resource Management Agencies in the United States: Implications for Energy Development in the Interior WestJournal of Energy and Natural Resources Law, Vol. 29, No. 1, pp. 87-118, 2010.  The abstract: 

Adaptive management is gaining influence among natural resource management decision-makers. In the United States, the Department of the Interior is now encouraging its agencies to utilise adaptive management when ‘appropriate.’ This is a positive step in natural resource management, reflecting a growing recognition of the need to integrate scientific uncertainty more effectively into agency planning and resource development. This new management scheme has potentially significant implications for energy development and its corresponding impacts on water and other resources. The US Department of the Interior’s Bureau of Land Management (BLM) is the primary agency responsible for managing 700 million subsurface acres of mineral estate. This article examines how the BLM might employ adaptive management in the context of oil and gas development to better protect resources in areas such as Wyoming’s Powder River Basin, where extraction of coal-bed methane has created significant controversy.  

Matt Festa

March 16, 2010 in Environmental Law, Federal Government, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

SCOTUS decides Mac's Shell case

Yesterday, the U.S. Supreme Court decided Mac's Shell Serv., Inc. v. Shell Oil Prods. Co., No. 08-240.  Service station franchisees sued under the Petroleum Marketing Practices Act, 15 U.S.C. 2802, 2804, claiming a "constructive termination" of their franchises.  From the Syllabus:

The Petroleum Marketing Practices Act (Act) limits the circumstances in which franchisors may "terminate" a service-station franchise or "fail to renew" a franchise relationship. 15 U. S. C. §§2802, 2804. Typically, the franchisor leases the service station to the franchisee and permits the franchisee to use the franchisor's trademark and purchase the franchisor's fuel for resale. §2801(1). As relevant here, service-station franchisees (dealers) filed suit under the Act, alleging that a petroleum franchisor and its assignee had constructively "terminate[d]" their franchises and constructively "fail[ed] to renew" their franchise relationships by substantially changing the rental terms that the dealers had enjoyed for years, increasing costs for many of them. The dealers asserted these claims even though they had not been compelled to abandon their franchises, and even though they had been offered and had accepted renewal agreements.

Justice Alito wrote the opinion for a unanimous Court, which held:

1. A franchisee cannot recover for constructive termination under the Act if the franchisor's allegedly wrongful conduct did not compel the franchisee to abandon its franchise. Pp. 6-15. . . .

2. A franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a constructive nonrenewal claim under the Act.

The case turned more on contract and franchise law, but it also may be of interest to land users to the extent that it touches on real property leases and oil and gas law . . . plus service stations are often a big issue in zoning.  Lots more info is available on this SCOTUS Wiki by Shira Liu of Stanford Law School.

Matt Festa

March 3, 2010 in Caselaw, Contracts, Landlord-Tenant, Oil & Gas | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Rhuks Temitope Ako (Unversity of Hull--School of Law) has posted Nigeria’s Land Use Act: An Anti-Thesis to Environmental Justice, forthcoming in the Journal of African Law, Vol. 53, No. 2, pp. 289-304, 2009.  The abstract:   

Nigeria’s Land Use Act, promulgated in 1978, is perhaps the most controversial legislation in the country. The Act, originally promulgated as a decree and annexed to the country’s constitution, was ostensibly made to nationalize landholding in the country. However, the peculiar impact of the Act on the inhabitants of the Niger Delta region that hosts upstream activities of the oil industry has led to assertions that the Act was made specifically to deprive those inhabitants of the right to participate actively in the oil industry. This article examines the impact of the Act on the right of inhabitants to access justice. It argues that the Act obstructs their rights to environmental justice and is a fundamental cause of the violent conflicts that pervade the region.

Matt Festa 

February 1, 2010 in Environmental Justice, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)