Tuesday, September 28, 2010
Daniel H. Cole (Indiana-Indianapolis) has posted what looks like another interesting article, Property Creation by Regulation: Rights to Clean Air and Rights to Pollute. The abstract:
Friday, September 24, 2010
Robert W. Adler (Utah) has posted Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act, Washington U. Journal of Law and Policy, Vol. 32, p. 139 (2010). The abstract:
Thursday, September 16, 2010
From Dr Rajiv Shah of USAID:
Global demand for freshwater is doubling every 20 years, yet water is becoming increasingly scarce in a number of countries, including many in the developing world. As you all know well, water is central to the success of our sustainable development efforts. Whether for domestic use, agriculture, industry, energy, or the environment, the availability of adequate supplies of good quality freshwater underpins the hopes and expectations of billions of people for improved well-being and affluence.In his inaugural address, President Obama pledged to help the developing world address its water challenges. And last March, Secretary Clinton challenged USAID and the State Department to elevate our freshwater access efforts and to ensure that we look at these challenges in an integrated manner. Climate change, food security and global health issues are three of our top priorities, and water is integrally linked to each challenge. In order to maximize the impact from our development investments we must enhance integrated programming, utilize smart science and innovation, build strategic partnerships, and learn from experience.
As one step on this path, I am pleased to announce the launch of Global Waters – the first newsletter dedicated to the broad portfolio of water-related activities of the United States Agency for International Development. Through this new bi-monthly newsletter, we wish to share with you the many challenges and opportunities, and the approaches and lessons learned that reflect upon USAID programming in the water arena. Each issue will highlight the work of our many implementing partners, as well as some of the more intimate stories of how the Agency’s work directly affects individuals, families, and communities around the globe.
If you wish to receive Global Waters on a regular basis, I encourage you to subscribe today, and to share this with your colleagues and partners who may find this of interest. You can do so by clicking on this link, where you will find the full newsletter and subscription details. I hope you will take time to peruse Global Waters and continue to help us build public support and understanding for these critical development challenges.
Jamie Baker Roskie
Tuesday, August 17, 2010
According to a recent story on NPR's Morning Edition, California has recently declared one of the most ambitious targets for renewable energy in the world - 1/3rd of its electricity from renewable sources by 2020. (Sadly, Georgia has no currently goal. No Southeastern state has, except North Carolina.) However, like Cape Wind, struggles continue over siting renewable energy projects - like this solar project proposed in Central California.
However, according to a recent story in The New York Times, there are places where the siting of solar projects is popular with pretty much everybody - on abandoned agricultural land.
Thousands of acres of farmland here in the San Joaquin Valley have been removed from agricultural production, largely because the once fertile land is contaminated by salt buildup from years of irrigation.
But large swaths of those dry fields could have a valuable new use in their future — making electricity.
Farmers and officials at Westlands Water District, a public agency that supplies water to farms in the valley, have agreed to provide land for what would be one of the world’s largest solar energy complexes, to be built on 30,000 acres. At peak output, the proposed Westlands Solar Park would generate as much electricity as several big nuclear power plants.
It's interesting that one environmental problem - saltwater intrusion from overpumping of the coastal aquafers - might contribute to another environmental solution - reduction of dependence on coal-fired power plants. Anyway, it's nice to see a non-controversial renewable energy project, for a change.
Jamie Baker Roskie
Monday, August 16, 2010
Property issues arise in interconnected physical, social, and legal environments. All indications point to interconnections that are complex, far-reaching in scope, multi-scalar, dynamic, and nonlinear. Property institutions must adapt to these complexities and changing conditions. However, it has become apparent that the patterns and practices of our uses of land, water, and the environment are unsustainable ecologically and socially. While both legal and socio-cultural understandings of property are evolving, they remain hampered by the supposedly wealth-maximizing and production-maximizing concept that property is a bundle of rights, often based in a mental image of a “bundle of sticks,” with each stick in the bundle representing a different right or entitlement. An alternative concept of property is that property is a “web of interests,” in which property interests are defined by the particular characteristics of the object of the property (including natural features and environmental carrying capacity) and by the interconnected relationships that people, entities, and institutions form with respect to the particular object. This chapter discusses how the web of interests concept might facilitate a more ecologically and socially sustainable definition of property interests amid the realities of the interconnected environments in which property issues arise. The chapter gives particular attention to issues of land and water, and explores the implications of sustainable webs of interest in water.I still rely heavily on the bundle-of-sticks metaphor for teaching, but I'm coming around to Tony's web-of-interests conceptualization. Looks like a fascinating piece.
Monday, July 19, 2010
Reed D. Benson (New Mexico) has posted New Adventures of the Old Bureau: Modern-Day Reclamation Statutes and Congress' Unfinished Environmental Business, forthcoming in Harvard Journal on Legislation. The abstract:
Sunday, July 11, 2010
Friday, July 9, 2010
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:
THE BP OIL SPILL LECTURE SERIES
TULANE LAW SCHOOL
OPEN TO ALL STUDENTS AND THE GENERAL PUBLIC
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 firstname.lastname@example.org (after August 5) or Forest Wootten, 2L, email@example.com.
Jamie Baker Roskie
Wednesday, July 7, 2010
We don't do a whole lot of fish-blogging over here, because, well, it is the Land Use Prof Blog. But land use law and practice is becoming more and more entwined with water, wetlands, environmental, and ecosystem law and policy at all levels. So some of you might be interested to hear about the impending Carp-Pocalypse: The Great Asian Carp Invasion Begins? from Time.
There's an underwater war underway in the Midwest – an offensive to keep the ravenous Asian Carp out of the Great Lakes. On Wednesday, it became clear: The carp are winning.
Late Wednesday night, the Associated Press reported that federal officials have, for the first time ever, discovered a carp swimming beyond the multiple electric barriers that were erected along the Chicago waterways to keep the fish out of the Great Lakes system. A 20-pound bighead carp was caught by a fisherman in Illinois's Lake Calumet, on the South Side of Chicago.
That's beyond the electric fence, and only six miles from Lake Michigan.
For decades, the carp have been making their way up the Mississippi, and then through Illinois rivers and canals that form an artificial link between the Mississippi Basin and the Great Lakes. The problems with this migration stem from the fact that the carp can grow into 4-foot-long, 100-pound monsters who devour 40 percent of their body weight daily. They destroy ecosystems by gorging themselves, and starving out other species.
I've always been interested in the history of canals, commerce, and the human endeavor to connect watersheds across the continent, but it seems there were some unintended downsides.
Thursday, May 27, 2010
Thursday, May 20, 2010
Earlier this month I was in Baltimore for the AALS Clinicians' Conference. The conference itself was a really fantastic opportunity to learn and be with my fellow clinicians. This year the setting was also quite spectacular - we were at the Renaissance Hotel right in the Inner Harbor.
While walking in the area I've happened upon a little gem, previously unknown to me. The Baltimore Public Works Museum is a fantastic historic building that is still part of the city's water and sewer system. Unfortunately the museum is currently closed to the public, due to budget cuts. I hope to visit it on a future trip to Baltimore, because I'm sure it's quite fascinating (at least to a land use geek like me).
Jamie Baker Roskie
Monday, May 17, 2010
Carolina A. Dehring (Georgia--Dept. of Insurance, Real Estate, Legal Studies) and Craig A. Depken (North Carolina--Charlotte, Business Admin/Economics) have posted Sharing the Burden of Water Supply Protection, in
Tuesday, May 11, 2010
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.
Jamie Baker Roskie
Monday, May 10, 2010
From my colleagues at GreenLaw
On May 10, 2010, attorneys from GreenLaw working with eight partner groups, filed petitions for hearings challenging permits for two major proposed coal-fired power plants in Georgia. In response to an unprecedented wave of permits issued by the state Environmental Protection Division (EPD) in April, the groups are fighting back with important claims against the water and air pollution permits proposed for Plant Washington, to be built in Sandersville, and against the air pollution permit for Longleaf Energy Station, to be built in Early County.
Longleaf, which is being contested by Friends of the Chattahoochee and the Sierra Club of Georgia, with representation from GreenLaw, is a project of New Jersey-based LS Power, which anticipates selling power to the highest bidders it can find.
In the 1200 mega-watt Longleaf permit, EPD classifies Longleaf as a minor source of pollution, while the 850 mega-watt Plant Washington (in a permit issued the day before) is classified as a major source. Listing Longleaf as a minor source allows the power plant to avoid critical requirements that would ensure that the plant operated in compliance with the law. EPD also failed to allow the public to comment on this decision. Attorneys objected on both grounds. EPD also granted Longleaf an extension on when it must begin construction. This extension will allow the plant to be built with outdated technology. Challengers are asking that EPD ensure that the permit is up-to-date.
Plant Washington, which is being contested by the Fall-line Alliance for a Clean Environment (FACE) and Sierra Club’s Georgia Chapter, as well as Altamaha Riverkeeper (for the water permit only), and Southern Alliance for Clean Energy (SACE) and Ogeechee Riverkeeper (both organizations for the air permit only), is a project of Power4Georgians, a company composed of Cobb EMC and four other EMCs. The Southern Environmental Law Center is co-counseling on the Plant Washington petitions.
The Plant Washington air permit fails to set safe limits on harmful air pollutants that would be emitted by Plant Washington, including sulfuric acid mist and particulate matter. Particulate matter is linked to respiratory illnesses, heart disease and even premature death.
The state water withdrawal permit fails to set necessary limits on the amount of water the plant can take from the Oconee River for use at the proposed plant located in the Ogeechee River watershed. Without adequate limits, communities such as Dublin, area farms and other downstream users along the Oconee River would be left without sufficient water resources.
The state water discharge permit fails to limit the temperature of heated wastewater discharged by the proposed plant into the Oconee River, changing the river’s ecology, depleting available oxygen in its waters, and harming fish and other wildlife that depend on the river system.
Georgia already has 10 coal-fired power plants, one of which, just north of Macon, is Plant Scherer, often cited as the most polluting coal-fired plant in the nation. The EPD has seven days to send the cases to the Office of State Administrative Hearings, where they will be assigned to administrative law judges. Court dates are expected later this summer. Links to the petitions are at www.green-law.org.
Jamie Baker Roskie
From Robin Craig at Florida State:
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
Monday, May 3, 2010
Christine A. Klein (Florida) has posted The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011). The abstract:
Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of its application for a permit to acquire water from Arizona.
This article examines the Dormant Commerce Clause as it applies to water export, identifying factors that have influenced the courts’ legal opinions. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause – whether water is an article of commerce – into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty five years, this paper argues that courts should no longer rely upon Sporhase’s water-as-article-of-commerce mantra. Instead, this article suggests a new analytical paradigm, the “water continuum.” More broadly, this article examines evidence from the Court’s Dormant Commerce Clause jurisprudence involving other natural resources – specifically, landfill space – that suggests the Court may be poised to make a radical shift, abandoning the Dormant Commerce Clause entirely.
Thursday, April 1, 2010
Last Friday was UGA's annual Red Clay Conference. This student-organized conference is always a blast, and I often have the honor of moderating a panel. The conference gets its name from the red Georgia clay, and the theme is always environmental. This year's theme was "Three States, One River: Exploring the Tri-State Water Dispute." The three states are Alabama, Florida and Georgia, and the river is actually a river system, the Apalachicola, Chattahoochee, Flint.
I wasn't able to stay for the whole day, but in the morning I sat in on a fascinating presentation by participants in a stakeholder negotiation process that is happening alongside the (inevitable, it seems, for these types of water resource disputes) litigation.
Then I moderated a panel called "Is Atlanta Really the 800 Pound Gorilla?" As you might imagine, this is a loaded question. There is much controversy in the region about how to allocate water resources to provide drinking water for Atlanta, water for power generation for Alabama, and sufficient water supply to protect the ecosystem (and fishing industry) in Florida. Our distinguished panelists included the lawyers who represent Atlanta and the State of Georgia in current litigation over Lake Lanier (which until a recent court decision was a primary water source for several counties and municipalities in North Georgia.) Needless to say, it was a lively discussion. My friend and colleague Gil Rogers from Southern Environmental Law Center was an audience favorite, and not just because he does comedy improv in his off hours. SELC has done some great work on the tri-state dispute over the years. At any rate, all the panelists were incredibly articulate, passionate, and interesting.
The keynote speaker was Joseph Dellapenna of Villanova University School of Law who spoke about potential ways forward in the dispute. The most interesting, and least practical, option he discussion was that the US Supreme Court could settle the dispute if it was asked to exercise original jurisdiction over a dispute between states. (Blast to Civil Procedure past, anyone?) However, since they've been litigating that case since the 1920s, that's probably not the most expedient solution.
Jamie Baker Roskie
Tuesday, March 30, 2010
Those of you not on any of the environmental law professors' or clinicians' listservs may not have heard about this, but there is quite a battle raging in Maryland over a case filed by the University law school's environmental clinic.
Below is a message regarding the controversy from Bob Keuhn, who was the subject of quite a controversy of his own when he was the director of the environmental clinic at Tulane. Ironically, Bob is now the president of the Clinical Legal Education Association.
As the nation’s largest association of law teachers, with over 750 members representing faculty at over 150 law schools in the United States, we are very concerned about attacks on the clinical program at the University of Maryland School of Law by some members of the Maryland General Assembly. These actions demonstrate a failure to understand the professional responsibilities of lawyers and the structure of contemporary legal education. Unfortunately, those attacking the law clinics appear more concerned about protecting favored businesses from compliance with the law than about supporting one of their state’s flagship schools.
As with other professions, hands-on work is a necessary part of a solid, responsible legal education. Every law school in America is required to provide its students with real-life practice experiences and the University of Maryland is among the best at doing so. In national rankings by other law professors, the clinical law and environmental law programs at the University of Maryland have consistently been ranked among the top ten in the country. Those programs benefit not just law students but all the citizens of Maryland by training ethical, skilled attorneys and providing countless thousands of hours of free legal assistance to those who otherwise cannot afford attorneys and would go unrepresented.
To effectively teach students and represent clients, these law clinics must be allowed to operate as other law offices, and law school clinics throughout the country, do -- zealously representing their client’s interests and following the commitment in the Maryland Rules of Professional Conduct to “ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” But, some legislators are trying to impose restrictions and burdens unknown to other clinics or law offices, invading the sanctity of the lawyer-client relationship and harming both legal education and legal services for the needy in Maryland.
And even more disturbing is that this is happening at the bidding of wealthy, powerful poultry interests. Those promoting these restrictions seem to think legal disputes should not be settled in court but through intimidation. If the opponents of law clinic cases have violated no laws, then they have nothing to fear from a legal proceeding that will judge those issues. If on the other hand they have failed to comply, then they should not be placed above the law because of their money and influence in the legislature.
Former Supreme Court Justice Potter Stewart once said that it is important to know the “difference between doing that which you have a right to do and that which is right to do.” Whatever right the legislature may have to burden and intimidate the state’s law school clinics and interfere with their normal educational and professional responsibilities, taking those actions clearly is not the right thing to do for Maryland.
Robert R. Kuehn
Tuesday, March 16, 2010
Dave Owen (Maine) has posted Urbanization, Water Quality, and the Regulated Landscape. The abstract:
Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising some new problems, represent a promising shift, and it discuss additional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns.