Thursday, November 15, 2018
Erin Ryan is the Elizabeth C. & Claude W. Atkinson Professor at Florida State University College of Law
This is the eleventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
It’s a daunting moment for environmentalists. Each day, it appears federal environmental law is being systematically dismantled, most aggressively by the executive branch, but with tacit support from the sitting legislature, and—with record numbers of President Trump’s judicial nominees sailing through the appointments process—likely with increasing support from the judiciary soon. Environmental advocates are grieving these losses, but we must also brace for new hurdles—and in particular, the Three Ps:Preemption, Property Rights, and Political Scale.
First, we must ensure the campaign to dismantle federal environmental law does not spill over into displacing state and local efforts to fill the void. Next we must push back against the strategic deployment of property rights to block future efforts to reinvigorate federal environmental law. Finally, we must think creatively about how to accomplish the goals of national-level environmental policy without the benefit of federal authority. This essay, a memo to environmentalists at this pivotal moment in time, reviews each of these challenges in turn.
Preemption. Preemption refers to the ability of a higher level of government to override contrary decisions made by a lower level of government. It matters a lot in environmental law, where important roles are played by federal, state, and local decision-makers. Federal environmental statutes often partner national and local regulators in distinct but interlocking roles within larger programs of cooperative federalism—in which the feds usually set standards and oversee compliance, while state and local actors decide how best to implement standards for local circumstances. These laws usually follow the model of “floor preemption,” establishing a federal “floor” of mandatory regulation that states may not fall below, but one that allows them to set more stringent regulations to address local concerns and preferences.
Federal environmental laws don’t usually prevent states from exceeding the federal floor, but there are exceptions—for example, automobile emissions standards. EPA has primary authority to set these standards, and states are generally forbidden from both raising and lowering them. Even so, Section 209 of the Clean Air Act authorizes California to set more stringent standards in light of its unique regional challenges—and underSection 177, other states may elect California’s stricter standard in lieu of the EPA “ceiling.” The California Waiver blunts the force of this example of “ceiling preemption,” which is relatively rare in U.S. environmental law. But with mounting hostility to environmental regulation, that could change.
Which brings us to the first challenge environmental advocates will likely face: the increasing threat of anti-environmental federal preemption. Proponents of deregulation seem poised to roll back many federal standards, but thanks to our dynamic model of environmental federalism, that is not enough to accomplish their goal. State and local leaders are already hard at work resuscitating environmental governance initiatives abandoned by the federal government. For example, the United States Climate Alliance is a coalition of seventeen states and territories committed to upholding the objectives of the 2015 Paris Climate Agreement within their borders, formed the very day President Trump withdrew the United States from the Accord. (Indeed, I’ve never been more grateful for federalism than I am right now.)
For deregulation interests to fully succeed, then, they must prevent state and local governments from simply taking up the vacated federal seat at the regulatory table. For that reason, Team Deregulation is unlikely to simply withdraw the federal government from the regulatory field entirely, which would swing open the door to state lawmaking. Instead, they are likely to seek weaker regulations partnered with language expressly preempting contrary state or local rules. If they can’t muster the political capital to get express preemption into the text, then they will attempt to persuade a reviewing court to imply it.
To wit, the Trump Administration is already trying to get rid of the Clean Air Act’s California Waiver. Since the Administration is trying to roll back the Obama era rule increasing emission standards to 54 mpg by 2025, this is the next logical step—otherwise, the states could simply ignore EPA’s looser rules and follow California’s more stringent alternative. That’s why the same proposed rollback of the 54-mpg standard also eliminates California’s ability to keep it. It’s critical that environmentalists preserve the ability of states to continue moving forward on emissions controls, even as the federal government attempts to take us backward.
With all this in mind, environmental advocates must identify and fortify those realms of federal environmental law most vulnerable to ceiling preemption after federal regulations are weakened. We must ensure that neither Congress nor EPA partners federal deregulatory efforts with statutory or regulatory language field-preempting subnational interference. And we’ll need to think carefully about other ways to safeguard the environment—which brings us to the next P.
Property Rights. Even as we respond to the current assault on federal environmental law, we also need to think ahead. Deregulation interests know that even if they succeed in dismantling those laws today, that won’t be enough, since a shift in national leadership could always bring them back in the future. So here’s a riddle: what’s the best way to prevent that from happening? Public law norms generally prevent governmental decision-makers from binding their future counterparts, so legal rules enacted today can ordinarily be revisited in the future. But that’s not always the end of the issue, thanks to another of Team Deregulation’s favorite strategies. The answer to the riddle: fortify the non-regulatory status quo with property rights.
Private property rights are a democratic foundation—a bulwark of protection for individuals against power—but they can be manipulated in contexts where public and private rights overlap, as they so often do in environmental law. Here in the U.S., few legal concerns command more focused constitutional attention than threats to private property. They receive the full force and attention of the Fifth and Fourteenth Amendments’ Takings Clauses, which require compensation when the government “takes” property for public use. The definition of “take” continues to evolve, however, and these clauses are sometimes interpreted to require compensation for any public regulation that interferes with private economic use of property,even when that use is harming the public. Moreover, private claims often fail to account for countervailing public property rights in related public commons natural resources.
The “Takingsification” of American property law has gathered force over time, and today, nothing can take down an environmental regulation more efficiently than the claim that it constitutes a taking. Which is why, from the perspective of Team Deregulation, it’s such a winning strategy. Rather than just dismantling environmental regulations that prevent extraction from public lands, much better to issue as many oil and gas leases on these newly opened public lands as possible. Those leases don’t just yield an extractive win for industry in the present, they complicate efforts to dial extraction back in the future, because private extractive rights will then have a thick layer of constitutional protection. Professor Christopher Serkin has persuasively shown how government actors have learned to consolidate their power in the present, protecting it from changed policy preferences in the future, by making pre-commitments into the future through the private law tools of property and contract.
Environmentalists must push back against the strategic use of property rights to fortify the deregulatory agenda. They must scrutinize efforts to create or reify private entitlements that would entrench environmental deregulation by preventing more stringent scrutiny in the future. They must also better educate lawmakers and judges about the complex relationship within property and environmental law, to refute the misguided Takingsification that occurs when we fail to account for the overlapping public and private interests in natural resources. As federal law often borrows from state law concepts of property, we can never ignore the importance of continuing to develop the common law of property through litigation in state courts. Which brings us, incidentally, to the third and final challenge.
Political Scale. With federal environmental law under sustained attack, it becomes incumbent on us to think more seriously about how to continue pursuing solutions to national-level environmental problems by means other than federal authority. More than ever, we are facing interjurisdictional challenges that cannot be managed effectively in a piecemeal manner. Some fifty years ago, we conceded that problems like air and water pollution, species loss, and climate change went beyond any single state’s boundaries or capacity. After the failure of the patchwork-of-states approach, iconic federal laws like the Clean Air and Water Acts recognized the importance of centralized national authority to cope with these problems.
But what if national authority ends? Disheartening as it may be, we need to think about new strategies for large-scale environmental governance that don’t rely on federal law. We should keep fighting to get federal law back—but in the meantime, the environment can’t wait.
The clearest alternative is regional governance. The patchwork approach was ineffective and challenging for industry, but what if many states used the same law? Perhaps we should consider the development of uniform state laws or model codes that would enable states to coordinate on a broader regulatory scale. Successful examples like the Uniform Commercial Code, the Model Rules of Professional Conduct, and other widely adopted laws provide a deliberated, tested model for states seeking sound, consensus-based policies in complex realms of law. States could adopt them in the wake of withdrawn federal law or wholly new areas, addressing climate change, water pollution, and waste management. For example, universities nationwide are collaborating on the multidisciplinary development of a Sustainable Development Code to provide best sustainability practices for adoption by local governments.
Uniform laws provide an obvious model for coordinated but nonfederal national response, but we might even consider less conventional means. Legal pluralismheralds the possibility of multiple sources of simultaneous normative policymaking, including sources beyond sovereign-based law. Could private or non-governmental rules contribute to large-scale environmental action? Perhaps meaningful guidance or rulemaking by commercial associations like the American Arbitration Association, professional associations like the American Law Institute, non-governmental legal institutions like the Council of Mayors, religious organizations, trade organizations, universities, and others?
In fact, here’s a concrete example that puts some of these ideas together. We all know that climate is the largest-scale environmental problem of all, ideally calling not only for national but international policymaking. Yet a substantial volume of climate-relevant decision-making occurs within individual homes and neighborhoods. And in the U.S., a large volume of that decision-making takes place through private homeowner associations. One in five Americans live in property subject to HOA governance, but many operate without sufficient legal expertise or guidance. Recognizing that problem, many states enact statutes, municipalities provide guidance, and private organizations sponsor training materials for HOA board members, to help them make better decisions that strengthen their communities.
So… what if we could impact climate policy by harnessing the private law influence of HOA decision-making on climate-relevant matters? Borrowing, perhaps, from parts of the Sustainable Development Code already in progress, legal architects could draft a model code of HOA best practices on water conservation, renewable energy use, transportation considerations, and other issues that impact the nation’s climate footprint. A model code could also discourage HOAs from preventing solar panels, clothes lines, rain barrels, or other sustainable practices, and could encourage landscaping practices that limit pesticide and nutrient loading of waterways.
In the end, overcoming the Three Ps will require novel ideas—but we’ll need some ambitious thinking to move forward in the difficult days to come. After all, necessity is the mother of creativity—and has there ever been greater need than right now?
November 15, 2018 | Permalink
J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.
This is the tenth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero. Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.
I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.
The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.
To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy” rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights, but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.
Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.
So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.
Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.
Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.
Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic. Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable” standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.
Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for. Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.
Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis. EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7, and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.
Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.
These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.
I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.
Wednesday, November 14, 2018
Melissa Powers is the Jeffrey Bain Faculty Scholar and Professor of Law, and Director of the Green Energy Institute at Lewis & Clark Law School.
This is the ninth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
“Every system is perfectly designed to get the results it gets.” If that’s so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system, because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets—such as an 80% reduction in greenhouse gas emissions or 100% renewable power by 2050—are designed with loopholes and exemptions that make it unlikely that the targets will be met. For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, we must create outcome-oriented climate and energy laws that ensure compliance. Otherwise, the slim chance we have to prevent runaway climate change will be lost.
U.S. environmental law is entering in its fifth decade, and while the existing legal system has produced significant improvements in air and water quality, it is not up to the task of addressing climate change. This is because U.S. environmental law is not end-goal-oriented, and the few laws that may seem to establish ambitious goals are not designed to meet them. Consider the Clean Water Act, which establishes the goal of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters,” so that every U.S. waterbody is fishable and swimmable. However ambitious that goal may seem, the permitting systems under the Clean Water Act are designed and/or applied to allow continued degradation of waterbodies, including those that are neither swimmable nor fishable due to historical and ongoing pollution and habitat destruction. The Clean Air Act’s goal of “protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population,” is too vague to be considered outcome-oriented. And implementation of the Clean Air Act focuses on balancing the economic interests of polluters with the public’s interest in pollution reduction. At best, this balance will produce deep emissions reductions where cost-benefit analyses support them, but the balance is subject to distortion—as the Trump Administration’s ongoing efforts to dismantle Obama-era environmental regulations reveal. Even the Acid Rain program under the Clean Air Act, which sets a final aggregate cap on sulfur dioxide emissions, uses a final target that was set based on politics, not environmental needs. U.S. environmental law seeks to slow the pace of degradation or to gradually accelerate the rate of improvement. While it’s important that these laws are applied to greenhouse gases until we have better laws in place, it is also essential to recognize that environmental law will not, in and of itself, do the job of preventing runaway climate change.
Nor will state and local efforts, as currently designed, do the job. In response to the Trump Administration’s announcement that it will withdraw from the Paris Agreement and in response to the Trump Administration’s assault on dozens of U.S. environmental rules, states and local governments have declared their intent to take a leading role in mitigating climate change. Their actions, while both commendable and necessary, are generally not designed to achieve decarbonization as an end goal. Leading states like California and New York have enacted scores of laws to reduce greenhouse gas emissions, but neither state has committed to energy decarbonization. California recently adopted a target of obtaining 100% zero-carbon electricity by 2045, but the state does not have either a goal or a strategy for eliminating fossil fuels from its transportation or heating sectors. Several local governments, happily, have made commitments to decarbonize all aspects of their energy systems. But, thus far, they do not have strategies to meet their commitments. In short, we lack both goals and designs for effective decarbonization.
We must change this approach. The United States and the rest of the world must quickly establish and achieve end goals for climate mitigation. Climate scientists have already told us what these end goals must be: for the world to have a chance of keeping temperature increases to tolerable levels, we must decarbonize our energy systems and, ultimately, achieve net-negative emissions targets through carbon sequestration. Global greenhouse gas emissions must stop increasing, immediately, and they must then rapidly drop, so that, by 2050, developed countries emit no greenhouse gases from fossil fuels.
U.S. lawmakers at the local, state, and federal (after the Trump Administration is out of office) levels must commit to complete energy decarbonization by 2050. They then must design their decarbonization strategies to ensure they meet this ambitious target. Much like we expect architects to design buildings that will perform as expected, we need to expect our lawmakers and regulatory agencies to create decarbonization strategies that will achieve the goals. Rather than apply existing laws with the hope that they will eventually reduce emissions over time, we need to create legal systems that ensure success. If “every system is perfectly designed to get the results it gets,” it’s past time for the United States to adopt a design approach to decarbonization. We can’t afford to get it wrong.
Tuesday, November 13, 2018
Vanessa Casado Pérez is Associate Professor of Law and Research Associate Professor of Agricultural Economics at Texas A&M University School of Law
This is the eighth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The aphorism “water is the new oil” is now truer than it has ever been. While many use the phrase to suggest that water is as scarce and valuable as oil once was, it is also true in another sense: speculation in water markets now rivals speculation in oil markets. Oddly, however, water scarcity has not translated into a higher price for water, as it has done in oil. But this anomaly may be on the verge of changing as international investors start to enter the business of climate change. From oil tycoons like T. Boone Pickens to international hedge funds, investment in all things water is on the rise. And while many deny climate change, the market does not. Since climate change is widely expected to induce scarcity in water supplies, business investments in the water market are increasing rapidly.
The alarm has gone off. Those who believe markets should not commodify water are appalled by the role that investment moguls play: all the investments in the water business may lead to price increases for water. There is some merit in valuing water as a scarce resource so that we do not misuse it. The more expensive it is, the shorter our showers would be and the more thoughtful the choice of crops and irrigation techniques will be.
But using the market to allocate water also gives rise to two concerns: the affordability crisis for low-income populations and the inability to capture certain intangible values, such as environmental protection, in a single monetary price. The first concern is often answered by saying that the amount of water needed to satisfy our basic needs is around 1% of the total water used. We could let the market deal with the rest and figure out how to allocate the 1% cheaply. Environmental regulations, such as water quality or minimum instream flows, could address the second.
While the answers to these concerns may not be reassuring, we should take comfort in the fact that water is somewhat speculation-resistant, at least compared to oil. Unlike oil regulation, the regulation of markets for water rights has built-in mechanisms to prevent speculation. These constraints in water markets have driven investments towards related industries, like water conservation technology or reuse.
Water rights can be traded in the Western United States and in other jurisdictions such as Australia or Chile. Trade includes leases and sales of water rights that give the buyer the right to use water if it is available. A common transaction might be one between an agricultural right holder and an urban consumer, because the latter often has a higher willingness to pay and a less elastic demand curve. In the US West, these types of transactions have brought flexibility to water allocation systems, where the majority of water rights were allocated when agriculture was the main economic activity and large cities and suburban areas with luscious lawns had not developed. Those transactions should make the farmer realize the opportunity cost of using water. Transactions are subject to different levels of control. First, transactions are subject to administrative review. Transactions cannot injure third parties or the environment. Water rights are defined across several variables, including the point of diversion and the type of use. A transaction will normally imply a change in either or both of those variables and is likely to affect third parties.
Another layer, and more relevant for the purposes of speculation, is the forfeiture provision included in all prior appropriation states and many other jurisdictions. These forfeiture provisions mandate that holders of water rights use the water. If they don’t use it for a certain period, usually around 5 years, they may lose the water right.So unlike with real estate or stocks and bonds, where owners can wait for the market to peak and then sell their assets, in water markets, owners cannot engage in this kind of wait-and-see. That said, if water becomes valuable enough, investors may find a way around these rules. One company, Water Asset Management, is taking that route—considering land an accessory. It focuses on water itself but to get to it, it buys land and it tries to make use of the land to break even. While others have not invested in water rights, they have invested in groundwater or water reuse, which profit from water scarcity.
The question is whether there is something that water law could do to stop big players from dominating the water market broadly understood beyond the forfeiture provision and the approval requirements. It can. Furthermore, water law may be able to target the surrounding industries that investors are interested in. First, regulators could limit the number of shares a single entity could accumulate. One of the main fears is a market dominated by big players. While antitrust regulations are set up to deal with monopolistic practices that harm the consumer, water law can take a page from other natural resources markets and avoid concentration by limiting the amount of water rights that can be accumulated in the same hands. In fisheries’ “individual transferable quotas” programs, there are limits on the shares of the total allowable catch that a single ITQ owner can acquire. This should prevent the concentration of the agricultural industry in a few hands, mitigating the concerns about displacing local farmers.
Second, groundwater should be subject to a permit system like surface water is. Investment companies are keen on exploiting lax regulations and have noticed that in many places groundwater may be more readily accessible as an investment. The separate regulation of a unique resource of surface and groundwater denies the science and makes both, given their interconnection, overexploited.
Third, wastewater regulation needs to be properly designed. As it stands today, return flow belongs to the user who diverted the water. A city may have a water right and divert water from the river. The city does not consume all of it. It usually treats the wastewater and sends it back to the river, where downstream users use it. But if a city decided to reuse wastewater before bringing it back to the river, it could do so, leaving downstream users without the water they have relied on for decades. In some states, like Arizona, cities may be able to not only re-use it in their area but sell the water as a commodity because cleaned up wastewater is considered a new product. While incentives to invest in reuse are paramount, water regulations need to better address the effect on downstream users and the ecosystem needs.
An adage seems appropriate to close this essay. Mark Twain purportedly said that “Whisky is for drinking and water is for fighting.” Water scarcity will certainly cause fights as there will not be enough water for all users. Given the business of water in times of climate change, the question that lingers is whether small water right holders and the environment can put up a fight against these powerful businesses. The three water law measures stated in this essay may be able to help.
Disruption as Opportunity
Jessica Owley is Professor of Law at University of Buffalo Law School
This is the seventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
- Environmental Disruption.
The world has always been full of disturbances, alterations, and disruptions. This has been particularly true when examining the ecological conditions of the Earth. Our planet has undergone many changes, even some drastic ones. Yet, the current rate of environmental disruption is unquestionable and unprecedented. Climate change is clearly the major disruptor, changing our atmosphere, our ocean currents, and our ecosystems. Humans are a particularly destructive species though and even without the implications of climate change, we are disrupting the environment. We convert species habitat. We pollute rivers. We overhunt. Our current historical environmental atrocities, however, seem trivial in the context of climate change. Particularly tricky is the unpredictability of climate change impacts and intensities.
- Legal Disruption.
Complicating the environmental disruption is an increased disruption of the American legal system. In the 1970s, the federal government began acknowledging environmental harms in our country and creating legal strategies to combat them. The goal of the Clean Air Act (1970) is to prevent and control air pollution. The Clean Water Act (1972) seeks to eliminate the discharge of pollutants into the nation’s waters. The Endangered Species Act (1973) recognizes the negative impacts of humans on the environment and seeks a “means whereby the ecosystems upon which endangered species … depends may be conserved.” And with the clearest acknowledgement of human impacts on the environment, the National Environmental Policy Act (1970) recognizes “the profound impact of man’s activities” on the natural world and sets a national policy to “prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [hu]man[s].”
While the effectiveness of these laws and the strategies they adopted is open for debate, they represented an awareness of environmental harm and a need to combat it. All of these statutes and others are now under attack from the Trump Administration and the Republican Congress. The Administration is seeking repeal and revision of the statutes along with changes to regulations and agency policies. Beyond the laws on the books, the Administration is also disrupting federal environmental law by dismantling the agencies that carry out those laws. The number of employees is shrinking along with departmental budgets. Science posts are being removed or left unfilled and scientific reports and language specifically prohibited or hidden.
While the assault on the panoply of existing federal environmental programs is disheartening, federal climate change policy is truly depressing. In 1992, world leaders (along with many others) met in Brazil and acknowledged the intense environmental, economic, and social problems caused by global climate change. Agreeing that the cause was “anthropogenic,” President George Bush signed the agreement and applauded the countries of the world in taking quick action to combat the serious problem of climate change. Despite this statement (and the U.S. role in shaping both the initial agreement and subsequent accords), the federal government has never been a true leader in the fight against climate change. However, the Trump Administration’s actions in this realm are so radical as to again merit the label disruptive. Shortly after taking office, Donald Trump announced withdrawal of the United States from the Paris Climate Agreement. Even more insulting, the only significant U.S. delegation at the last conference of the parties to that 1992 treaty preached increased use of fossil fuels. As with the disruption to our environment, the disruption to our environmental laws is unprecedented.
- Disruption as an Opportunity
The real conundrum for environmental activists and humans who care about the world is determining what to do in the face of this disruption. The paragraphs above paint a bleak picture and suggest that disruption is doing significant harm. A challenge then is whether we can turn that attitude on its head and make these disruptions opportunities. At our 2018 ELC meeting, Vanessa Casado Perez noted that crisis, hitting rock bottom, is what really spurs human action on environmental issues. If things are really falling apart at the federal government, maybe this disruption of environmental law will trigger new energy and action from other sectors. Disruptions in innovation are changes to technologies that can help sectors (and sometimes even societies) leap ahead to a new level. Creative ideas lead to new solutions.
One sphere where this environmental and legal disruption is inspiring action is in the private sector. While Inara Scott reminds us that the business sector can be a force for positive change there is also a strength in individuals acting on their own or joining force with the power of nongovernmental organizations. In this light, a turn to the private seems both logical and sensible. Citizens seek to fill in the gaps left by a withdrawn federal government. It is unclear whether they can work as effectively toward reducing the harms of ecological disruption, but in a time of legal disruption their efforts gain prominence. Three examples highlight this trend.
Citizen Science and Information Protection: As government agencies began scrubbing their websites of environmental information, particularly discussions of climate change, others began archiving the information and making it available. Private organizations like the Environmental Data and Governance Initiative formed shortly after information began disappearing from public websites. Groups that had formed earlier for other reasons (like associations of librarians) also took up the cause of protecting and providing information when they saw the need arise. Additionally, while the EPA may be employing fewer scientists, people across the planet are stepping up and collecting data to aid in scientific research and environmental monitoring. The rise of the citizen scientist is an innovation that can improve environmental information and outcomes if deployed correctly.
Increasing Support of Environmental NGOs and Land Trusts: After the election of Donald Trump, donations to environmental advocacy organizations rose. Public attention to environmental issues can be seen in events like the March for Science and the Peoples Climate Movement. Gallup’s most recent polls show concern for the environment growing in the United States, even as fewer people identify themselves as environmentalists. Land trusts are an interesting part of this trend. Like other environmental organizations, they also saw their membership numbers and dollars increase post-Trump. Their focus differs from traditional environmental advocacy organizations as they seek to meet their conservation goals through protection of individual parcels and working with property tools. By purchasing land and rights in land, they seek to prevent development and conversion of land to uses that diminish ecosystem services and amenities. Working with private landowners, they often bring new people into the conservation movement. Through working with property rights, they create restrictions that are more durable than federal regulatory mechanisms.
Citizen Suits: Finally, despite a hollowing out of our environmental laws, activists are drawing upon the citizen suit provisions contained in many of our key environmental statutes. While there have been some proposals that would impact some of the fee-shifting provisions of citizen suits, neither Congress nor the Executive branch has suggested repealing citizen suit provisions or revising the Administrative Procedure Act, which often provides the hook for environmental litigation. Law firms are preparing for an increase in environmental citizen suits and the environmental activists seem happy to comply. Thus, we can still look to our 1970s law for some solace even though we must acknowledge the standing hurdles for environmental citizen suits are nontrivial.
These examples illustrate how energy and innovation by private actors can be part of the story of response to the current disruption of environmental law. Taken together with other examples and proposals in these essays, they can provide us with a way forward if not quite a way out.
Sunday, November 11, 2018
Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University
This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
In the spring of 2018, I joined professionals from a number of fields, including law, public health, science, and psychology, at the Witnessing Professionals and Climate Change conference at Princeton University, to contemplate the impact that the global climate crisis has had on our understanding of professional responsibility. In the rich discussion that ensued, Professor Robert Jay Lifton, Lecturer in Psychiatry at Columbia University and Distinguished Professor Emeritus of Psychiatry and Psychology at the City University of New York, used a phrase—malignant normality—that was referenced throughout the conversation and has resonated with me as I have continued to consider the intersection between climate change and the professional responsibilities of attorneys.
In many important respects, norms of legal professional conduct—as expressed in the AALS Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities and the Model Rules of Professional Conduct and as exemplified by the actions of many attorneys and professional associations—position the legal profession to provide support and leadership in response to climate change. The AALS Statement of Good Practices provides that law professors have an “enhanced obligation to pursue individual and social justice” and that “engaging in law reform activities or advocating for improvements in law and the legal system is a valued role of legal academics”; the Model Rules encourage attorneys to participate “in activities for improving the law” and allow attorneys when advising clients to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” And the Environmental Law Institute recently co-sponsored the Second National Conference of Lawyers Committed to Addressing the Climate Emergency, which involved participants from across the professional spectrum, including private practice, academia, and public interest.
In other ways, however, legal professional norms may frustrate an efficacious response by the profession to climate change. For example, little attention has been paid to the role attorneys may have played in the energy industry effort to mislead the public about climate science and whether, if at all, the Model Rules speak to that type of conduct. Naomi Oreskes and Geoffrey Supran, InsideClimate News, and the Union of Concerned Scientists have extensively documented how some energy industry actors orchestrated a campaign to market lies about climate science to the public. While the role of attorneys in the climate disinformation campaign is not (yet) clear, attorneys were deeply involved in the similar campaign by tobacco companies to lie to the public about the health effects of smoking. Indeed, climate disinformation is but one in a series of revelations about corporate public disinformation efforts which now perhaps includes the safety of opioids as well.
Yet, while many have recognized that attorneys often advise clients regarding public relations, the Model Rules provide little clear guidance about the norms that should govern attorney conduct in this capacity.
- Model Rule 3.3 (Advocate, Candor toward the Tribunal) prohibits a lawyer from knowingly making a false statement of fact or law or offering evidence that the lawyer knows to be false, but is limited to representations to a tribunal.
- Model Rule 3.6 (Advocate, Trial Publicity) prohibits “[a] lawyer who is participating or has participated in the investigation or litigation of a matter” from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” but is limited to lawyers acting directly as spokespeople in the context of an adjudicatory proceeding.
- Model Rule 4.1 (Transactions with Persons Other Than Clients--Truthfulness in Statements to Others) prohibits lawyers from knowingly making a false statement of material fact or law to a third person and from failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. But various requirements embedded in the Rule raise uncertainty as to whether and how it could apply to counseling misleading public communications. It may be difficult to show that the underlying corporate conduct constitutes fraud as this is indexed to the substantive or procedural law of the applicable jurisdiction and information protected by privilege need not be disclosed. Additionally, it is not clear what level of knowledge satisfies the requirement for “knowingly” nor is it clear what would be understood to constitute a material fact in that context.
- Model Rule 8.4 (Maintaining the Integrity of the Profession, Misconduct) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to counsel a client to engage in activity that would violate the Rules of Professional Conduct. This would seem, on its face, to be potentially applicable to attorney involvement in corporate disinformation campaigns. However, Model Rule 8.4 has not been interpreted or applied in a context similar to that of counseling corporate public disinformation. The Restatement (Third) of the Law Governing Lawyers cautions courts to avoid overbroad readings of the Model Rule and a review of cases and disciplinary proceedings reveals that the Model Rule has typically been applied to conduct of a very different nature, such as when an attorney helps a client structure a fraudulent transfer to avoid a known creditor or backdates documents.
Can attorneys ethically assist their clients in misleading the public through corporate disinformation campaigns designed to distort public opinion, like the climate disinformation campaign? The answer to that question is frustratingly opaque—there is no clear guidance under the Model Rules. In two companion articles, professional responsibility scholar Michele DeStefano Beardslee reported on the results of a study documenting the increasing role of attorneys in managing corporate public relations and analyzed the Model Rules for guidance regarding attorneys functioning in that role. She concluded that “the current ethics rules, adversarial system, and economic incentives almost predestine that attorneys will aid their clients in misleading the public about corporate legal controversies,” observing that “[f]or statements that misrepresent or stretch the truth, the current interpretations of the Model Rules do little to constrain” attorney advocacy in the court of public opinion.
The lack of clear guidance about the ethical obligations of attorneys advising clients in the public relations context may thus be an aspect of our existing professional, normative structure that has contributed to inertia on climate issues. And there are other climate-relevant aspects of legal professional norms that warrant examination. Chief among these is the continued greenhouse gas-intensive travel to professional conferences that is, perhaps, profligate in present circumstances. Critical assessment of these and other legal professional norms is warranted to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a malignant normality that deepens the climate crisis.
Saturday, November 10, 2018
Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School
Shannon Roesler is Professor of Law at Oklahoma City University School of Law
This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”
But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.
That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.
Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”
If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.
Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.
In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”
So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.
To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.
November 10, 2018 in Air Quality, Climate Change, Current Affairs, Governance/Management, Law, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink
Friday, November 9, 2018
Blake Hudson is Professor of Law and the A.L. O'Quinn Chair in Environmental Studies at the University of Huston Law Center.
This is the fifth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The theme of the 2018 Environmental Law Collaborative, “Environmental Law: Disrupted,” effectively captures the way in which federal environmental law has been seemingly turned on its head under the current administration. It truly feels like a disruption, as if nearly 50 years of environmental progress is not just being halted, but is at risk of being reversed, even on issues that in recent decades seemed settled—like having safe air to breathe and safe water to drink. Of course, we have seen this play out before, such as when Ronald Reagan was first elected and began the rollback of federal environmental protections. But partisanship is much more acute today than it was even then, and the disruption seems to have an air of permanence about it, or at least an air of long-term persistence.
In light of this disruption, many are calling for an increased reliance on the next line of defense, state governments. It is an understandable position, given that some states have demonstrated an interest in addressing environmental problems more broadly, as well as the political will and administrative capacity to do so. Yet for many more states, particularly in regions of the country like the Southeast (where I am from), an understanding of the state’s role in protecting citizens from environmental and associated economic harm, and the development of the political will and institutional capacity to carry out such programs, feels quite remote. In these locations it is arguably not much further developed than it was when the state of Ohio seemed content to let the Cuyahoga River burn in the 1960’s.
But what about the areas of law where there never was a comprehensive, ordered legal approach already in place to be disrupted?—the legal fronts where states have yet to comprehensively exercise their authority to protect the environment, and where the federal government has little to no regulatory safeguards in place? Such is the case with land development that impacts natural resources, and the dearth of policies in place to comprehensively and effectively deal with the scope of the problem. In this space there really cannot be a disruption of the legal regime because there never was a meaningful evolution or progression towards comprehensive environmental safeguards to begin with.
Control over the paving of landed natural capital with development in the U.S. remains an uber-decentralized mishmash of policy approaches (at least in places where there are any policies actually implemented). Land use regulation is the “quintessential state and local power,” as articulated by the U.S. Supreme Court. Thus, the fifty states hold the keys to how land development proceeds, with little input from the federal government (except in the limited circumstances where an endangered species or a wetland connected to navigable waters is present). Most states, in turn, often leave decisions over land use development to the 88,000 subnational governments that stretch across the U.S.—that is, unless the states do not like the way in which local governments are trying to control land development and prevent environmental harm, in which case they can preempt those efforts (here and here).
While the federal government refuses to enter the regulatory space, land development impacts many of the targets of federal environmental regulation. Land development affects water quality (the Clean Water Act), air quality (mobile emissions under the Clean Air Act), and the driver of species decline, habitat destruction (the Endangered Species Act). So the subject matter of federal environmental law could be addressed more effectively if state and local governments engaged in better land use planning.
Considering the lack of federal involvement, and an ad-hoc, inconsistent approach to land use planning at the state and local level (with southeastern states being exceptionally lax regarding land development controls), urban sprawl proceeds apace, and natural capital is being replaced at a profound rate. While some jurisdictions have engaged in innovative land use planning and development, and gains have been made on some fronts, until society begins to view development per se as a complex, “super-wicked” environmental problem, we will not maintain a sense of urgency along policy fronts to address the problem’s scope. We will keep addressing the symptoms of the land development problem (endangered species, poor water quality, poor air quality) rather than finding a cure for the disease.
While explication of the minutiae is beyond the scope of this post, I am currently working on a project developing a typology of factors that contribute to the wickedness of the land development problem (stay tuned). These include the challenges of collective action unique to the land development sector; corporate design of that sector; legal institutional hurdles; economic drivers; intersecting federal policies; property rights; political economy; time/behavioral science/spatial and geographic factors; population/demographics; and an ever-changing natural environment in a time of climate change. Articulating and exploring these factors will be important to both change the dialogue on land development as an environmental problem and to more adequately inform policy responses to address the problem.
In short, the current state of affairs at the national level is a dramatic disruption of environmental progress. But we cannot forget the areas where holistic environmental progress has never been achieved. In a world of growing populations and economic growth tied quite directly to the replacement of natural capital with human-built capital (Texas, a state of 25 million people in 2010 is projected to double to 50 million citizens by 2050 due to rapid economic expansion), we can no longer take our country’s vast expanse of land for granted. We must do better to plan and control growth, the development of our land, and the replacement of our natural capital. If not, we will eventually find the loss of those environmental resources quite disruptive to human progress and well-being.
Thursday, November 8, 2018
Keith H. Hirokawa is Professor of Law at Albany Law School
Jonathan Rosenbloom is Dwight D. Opperman Distinguished Professor of Law at Drake Law School
This is the fourth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
A brief perusal of the history of environmental law illustrates the ways law might be employed to suffer through a constant state of disruption. In the past, we have largely relied on state and federal environmental legislation and regulation to accomplish the task, in part because of a fear that local governments will “race to the bottom” and take a competitive advantage against their more regulatory-prone neighbors. We would suggest that the reliance on state and federal regulation, as well as the lack of confidence in local governance, has served to undermine sincere dialogue on the potential of local government to govern well both within and across boundaries.
The present circumstance of climate and ecological disruption will provide an opportunity to revisit the issue of local environmental law. Specifically, climate change will require more engagement with local governments because of the local stakes involved. Given current and likely future disruptions from rising sea levels, heat waves, and storm events, local governments will be faced with coastline insecurity, vulnerable infrastructure and difficulties in meeting essential human needs, geological instability, uncertain ecological changes (such as invasive species), water scarcity, and population migration. Such changes will permeate social, economic, and environmental expectations in every community. Given the role that local governments play in responding to challenges to local quality of life and security, local governments will inevitably become players.
There are and will be instances where local governments manipulate social, economic, and environmental resources to protect their own. But there are and will be examples that illustrate the contrary. Some local governments forego regulation of extraction and resource development, while others will adopt more comprehensive land use regulations that maintain ecosystem services and other quality-of-life determinants. But differences in local governance are neither surprising nor unwarranted – governments illustrate legitimacy though responsiveness to local needs, and local needs differ across boundaries. More importantly, norms and values develop in very local ways, and it would be a mistake to disregard value differences, even at minute levels, that occur across borders.
Local is not only a circumstance that is relevant to understanding particular governmental actions. Local also provides a framework for understanding common concerns such as shared resources, regional circumstances, and intergovernmental cooperation. And, in the context of disruption, local can play a significant role in at least the following four categories: responsiveness; baseline information generation; innovation research; and normalization.
- Local is Responsive to Change
Environmental disruption is coming and, in fact, is here. Law will have to develop new strategies to face the new challenges and immediacy will be a factor. Government strategies should be designed to launch on short notice. It is easier to experiment with new regulations and approaches at the local level: first, because the closeness of local government to governed communities demands it; and second, because the scale of local governance makes debate, passage and implementation of new approaches easier.
Local governments are acutely responsive to social, economic, and environmental change for good reason. Regardless of how such disruptions are perceived on a regional, state or federal level, they are felt locally. The invention of the elevator and automobile fundamentally altered the role and potential of urban areas to provide homes and economic opportunities. In turn, such disruptions helped shape attention to infrastructure and governmental service needs. More recently, local governments have expeditiously responded to water shortages by prohibiting water waste, restricting specific water uses, and requiring installation of efficient water fixtures and grey water use in new construction and building renovations. Similarly, local governments have controlled stormwater flows by implementing measures for permeable pavements, green roofs, and rainwater harvesting. See, e.g., Chatham, MA, Protective Bylaws § 4(B) (2016) (floodplain development and permeable driveways);Denver, CO, Code of Ordinances §§ 10-300 to 10-308 (2017) (green roofs);San Diego, CA, Rain Harvesting Rebate Program (cash incentives rain barrel installation).
- Local as Source of Baseline Information
As a matter of course, local governments gather and assess information on local vulnerabilities to disruptions. Local governments keep a watchful eye on natural and built infrastructure assets, the availability of nature resources, housing stocks, access to food and energy, and population dynamics. Local governments often require permit applicants to provide critical information on development elevations, habitat values, and slope stability. Likewise, local planning and development review processes have resulted in a wealth of information on groundwater budgets, canopy cover, and buildable lands. Other local governments require energy benchmarking and audits for larger buildings and governmental operations. See, e.g., Atlanta, Georgia Code of Ordinances § 8-2002 (2016) (requiring both energy benchmaking and auditing for certain public and private buildings); Denver, CO Code of Ordinances § 4-53 (2016) (commercial building benchmarking and reporting); Seattle, WA Municipal Code § 22.920.010 (2010)(requiring building benchmarks and reporting); Austin, TX Code of Ordinances § 6-7-31 (2011) (commercial facilities required to calculate annual energy budget). The information is commonly used to inform a variety of local government decisions such as land use planning and permitting, budget decisions and infrastructure planning, event planning, intergovernmental cooperation and even the exercise of eminent domain. The information helps to identify future risks and costs, the potential for public interest in particular problems, and the solutions that might be relevant.
Local governments are not better at gathering this information due to sophistication or funding. Local governments are better at it because of their access to a deep pool of relevant information and their lens through which the information is discerned. The important point here is to recognize the critical role of location to the way local governance happens. Based on geological, ecological, economic, and cultural circumstances, communities adapt to the demands of living in a particular place because communities must survive in their own place. This type of experienced information is tattooed with the values that particular resources have to their beneficiaries and users and reflected in local resource decisions.
- Local as a Laboratory for Innovative Responses
Communities approach particular changes in their own ways – some dig in to wait out changes, some take more protectionist ideals and seek to maintain the status quo through zoning, where others employ more forward-thinking measures through long range planning. It should not be surprising that different communities often understand changing circumstances in ways that appear to contradict. But it is also not surprising that a particular community’s reaction to new challenges follows more or less the same basic premise: although local needs and circumstances will vary, human needs and quality of life are the common driver.
Accordingly, the third observation about the importance of local is variation in innovation. The development of technologies and approaches to construction, infrastructure, economic development priorities, education, and housing (and others) are designed to resolve the effects of disruption and secure a community’s vision against the backdrop of change. Importantly, variation in local responses to disruption generates significant information on what works and the local circumstances that facilitate stories of success.
Many local governments are experimenting with incentives to promote green building techniques and even requiring developments to implement the most sophisticated building materials. While the federal government pursues policies that support coal and concrete, local governments are pushing forward with promoting technologically advanced forms of building. Lancaster, California, requires that many new buildings meet net zero standards or be outfitted with a solar energy system that can produce two watts of power for every square foot of the home. Lancaster, Cal., Energy Code § 15.28.020 (c) (2017). Georgetown, Texas, offers multiple incentives, including net metering and rebates, for residents to add renewable energy sources to their properties. Georgetown, TX, Code of Ordinances § 13.04.083 (D) (2) (2012). Miami Beach, Florida, a city already struggling with climate changes, is assessing building fees to combat the impacts of rising sea levels through innovative projects such as environmental restoration projects, monitoring, green infrastructure, and stormwater quality improvements. Miami Beach, FL, Code of Ordinances § 133-6(a)(2016).
- Local as Normalization
Elevating location in an analysis of environmental governance does not suggest any particular value as a normative matter. There will be few response strategies that will be effective in every community, and a “good” strategy may be best guided by the notion that it is good if it would work here. In the meantime, preemption is a good check on local governance, and top-down approaches to land use regulation may offer meaningful constraints on the bad kind of intergovernmental and inter-community competition. Nevertheless, the pervasiveness of location suggests that we should not rush to preempt local initiative. In the meantime, although local should be recognized for uniqueness, the contingencies in the arena of local regulation can serve as a gauge for developing norms. Successful strategies can be borrowed and adapted to different communities, which in turn will generate additional confidence as response strategies across the spectrum of ecological, geological and hydrological difference normalize in the common goals that drive locational adaption.
Wednesday, November 7, 2018
The United States uses a cooperative federalism framework to implement much of federal law. Under this framework, Congress allows states to take over implementation of major aspects of the program, while still requiring oversight and review by a federal administrative agency. These arrangements have become central to environmental law—the Clean Air Act, Clean Water Act, and RCRA provide a few of the most prominent examples—and to many other regulatory fields.
One might wonder, then, whether state and local governments recreate similar arrangements—and, if those arrangements do exist, how well they work and what makes them succeed. After all, many of the justifications for cooperative federalism might seem to apply with similar force to relationships between state and local governments, particular in larger states. In a recent research project, the results of which are published here, I attempted to begin answering these questions.
The answer to the first question is that while these programs are much less prevalent and prominent than federal-state cooperative federalism, they do exist. Some programs, like California’s system of air quality planning or land use regulation in Oregon, have been around for decades. Others, like land use planning in Florida, existed for a long time before eventually becoming defunct. And others, like groundwater management in California, are brand new.
The answer to the second question is that these programs can work well. I interviewed experienced participants in Florida land use regulation, Oregon land use regulation, and California air quality management. Almost without exception, they identified a cooperative state-local model (which I’ve labeled “cooperative subfederalism”) as an effective way to govern. No one suggested that the model is foolproof, and participants identified many challenges to its success. But they generally viewed it as an effective system for managing the inevitable conflicts and as superior to other potential governance options. Perhaps, then, such arrangements should become more common than they currently are.
I also asked how these systems can be structured for success, and here, responses coalesced around a few key points (on other matters, there was a wide range of views). Most importantly, my interview subjects recommended a highly interactive governance model and a highly engaged state. Leaving local governments alone, while perhaps intuitively appealing, was not the recommended course. Instead, interviewers recommended continuous communication, financial and technical support, and some sharing of roles.
Beyond suggesting changes in the structure of state and local governance, these conclusions have interesting implications for traditional theories of federalism. They raise questions about the practice, which is particularly prevalent in Supreme Court opinions, of equating state and local governance. The primary reason a cooperative subfederalism model is valuable, according to my interview subjects, is that state and local governments are quite different, with the local governments possessing many of the positive qualities (and some of the negative ones) that traditional federalism rhetoric attributes to states. Additionally, these findings raise questions about the emphasis, which is also pronounced in traditional federalism theory, of preserving sharp distinctions between federal and local spheres. Those sharp distinctions don’t seem to work well when state and local governments divvy up authority, and that raises questions, at the very least, about why they should be more productive when drawn between the federal government and the states.
The final article is available here.
- Dave Owen
Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law
Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law, University of Utah S.J. Quinney College of Law.
This is the third in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
How much do Presidents really matter to the United States’ participation in international environmental law?
Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush’s pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama’s reliance on drones and attempts to bring American troops back home. In turn, President Obama’s engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump has thus far chosen to walk with regard to the same issue. Indeed, President Trump’s “America First” approach to international relations shows every sign of becoming one of the most presidentially-driven idiosyncratic periods in the United States’ relations with the rest of the world since at least the conclusion of World War II.
But how much does any of that matter to the United States’ participation in international environmental law?
The issue, of course, is that the United States Constitution formulates treaty-making as a two-body problem: The President signs and the Senate advises and consents. Failure of the United States to participate can occur at either stage. For example, President Clinton signed but Congress refused to ratify the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (to which the United States remains, at least for now, a party). Indeed, as of late August 2018, according to the U.S. Department of State, Presidents have sent 42 treaties to the U.S. Senate that still await the Senate’s advice and consent to ratification.
One of those 42 treaties is the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). President Reagan refused to sign the treaty when it opened for signature while he was in office, but President Clinton signed it on July 29, 1994. It has been sitting with the Senate since October 7, 1994—that is, through Presidents Clinton, Bush II, Obama, and, so far, Trump. Clearly, the identity of the Chief Executive has not mattered much to the United States’ failure to ratify.
Perhaps perversely, however, the United States’ non-ratification and the identity of the Chief Executive also don’t seem to have mattered all that much to the treaty’s operation—including in U.S. waters. Of the 193 United Nations member states, 168 (including the European Union) have ratified this “constitution for the ocean,” which went into effect on November 16, 1994. The United States follows UNCLOS III’s jurisdictional provisions on the grounds that they are customary international law. Indeed, after refusing to sign the treaty, President Reagan first proclaimed a 200-nautical-mile Exclusive Economic Zone for the United States in March 1983, then in December 1988 added a 12-nautical-mile territorial sea —both exactly as UNCLOS III allows. All subsequent Presidents have accepted these proclamations. Finishing up, in September 1999, President Clinton proclaimed a contiguous zone for the United States out to 24 nautical miles, http://www.presidency.ucsb.edu/ws/?pid=56452—and, again, all subsequent Presidents have accepted that declaration. In addition, the United States ratified the supplemental Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocksin August 1996, and this treaty came into force on December 11, 2001.
The United States has perhaps been most out of step with the rest of the world with regard to rights in the seabed. In September 1945, more than a decade before the first Law of the Sea conventions opened for signature in 1958, President Harry Truman proclaimed the United States’ assertion of control over the continental shelf, a post-World War II recognition of the importance of offshore oil and gas reserves. The United States’ most prominent objection to ratifying UNCLOS III was its treatment of the deep seabed (denominated “The Area”) and its minerals as “the common heritage of mankind.” However, deep seabed mining is just now getting underway, and, so far, it is taking place only on the deeper parts of continental shelves controlled by coastal nations (gold and copper deposits off the coast of Papua New Guinea, and iron sands off the coast of New Zealand). As a result, the United States’ objection might be regarded as 40 years premature.
Even with respect to the seabed, however, the United States is beginning to behave like the rest of the world. Specifically, the United States is mapping its extended continental shelf in the Arctic Ocean in conformance with UNCLOS III—even though our non-ratification of the treaty means that we cannot submit a claim to that extended shelf to the Commission on the Limits of the Continental Shelf. Moreover, U.S. companies like Lockheed Martin prefer the legal safety of UNCLOS III when pursuing deep seabed mining; Lockheed Martin formed a U.K. subsidiary, UK Seabed Resources, so that it could receive its mining licenses from the International Seabed Authority pursuant to the treaty. Such industry preferences and the United States’ interest in the Arctic might finally induce the Senate to ratify the treaty.
Maybe. The larger point here, however, is that the United States’ relationship to UNCLOS III has been more or less the same since President Reagan, despite the fact that he did not sign the treaty and President Clinton did. Part of the reason, no doubt, is that President Eisenhower signed, and the Senate under a new President Kennedy ratified, the four 1958 United Nations Conventions on the Law of the Sea, which set forth many of the same kinds of obligations and rights as UNCLOS III. Another part, no doubt, is that the new jurisdictional provisions in UNCLOS III, and many other of its provisions, work to the United States’ advantage. But an important part of the reason is that Senate procedures and politics—not presidential inclination—have been an effective roadblock to ratification, underscoring the basic constitutional point that the United States’ assent and strict adherence to international environmental law is only partially a matter of who the President is.
Tuesday, November 6, 2018
Rebecca Bratspies is Professor of Law at the CUNY School of Law and the founding director of the Center for Urban Environmental Reform.
This is the second in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Now is the moment!
The choreographer George Balanchine is famous for telling his dancers
“why are you holding back? What are you saving for—for another time? There are no other times. There is only now. Right now.”
While dance and environmental law are generally not considered the most closely aligned fields, I have been thinking about Balanchine’s word’s lately as I try to respond to the current administration’s approach to climate change, and to environmental law more generally.
On October 6, 2018, the Intergovernmental Panel on Climate Change issued a report titled Global Warming of 1.5°C. This report underscores the vital importance of ‘now” that Balanchine was trying to convey to his dancers. The report emphasized that the world is not yet committed to catastrophe—it is still possible to keep anthropogenic climate change below 1.5°C of warming. However, there is only a small window of time in which we can change our trajectory and limit the damages of climate change. Thus, the IPCC unambiguously states that the need for immediate action is urgent and that averting catastrophe will require “rapid and far-reaching transitions” that “are unprecedented in terms of scale.” There are no other times. There is only now. Right now!
The United States national government seems set on preventing any such transition. Announcing with great fanfare that the United States would withdraw from the Paris Agreement, the Trump Administration is on the wrong side of history. Climate deniers occupy key executive branch positions. As a result, the government alternates between bolstering the coal industry, undoing laws preventing methane and HFC emissions, and reducing fuel efficiency standards. Indeed, the Trump administration recently used the prediction that disastrous warming was inevitable as a reason to allow increased carbon emissions from vehicles. Noting that the proposed rollback was “projected to result in only very minor increases in global CO2 concentrations and associated impacts”the administration rationalized that any such restrictions were too small to matter because climate change is a global issue. This was, of course, precisely the argument rejected in Massachusetts v. EPA. In that case, EPA had argued that because greenhouse gas emissions caused widespread harm, there was no “realistic possibility. . .that the relief petitioners seek would mitigate global climate change and remedy their injuries.” The US Supreme Court flatly rejected this contention noting that “the United states transportation sector emits an enormous quality of carbon dioxide” and that restricting these emissions would be an incremental step that might reduce the risk to some extent.
Yet, even as the federal government backslides, large portions of the country are forging ahead. All eyes are on the cities, states, businesses and other organs of civil society that have pledged to take action on their own. The 3600 member strong “We’re Still In” coalition, for example, has taken up the task of achieving with the United States’ Nationally-Determined Commitment to the Paris Agreement without federal leadership. Hundreds of subnational and private actors have submitted pledged to reduce their carbon emissions. These commitments put us on track to come close to achieving our Paris obligations. And, technology is rapidly leaving carbon behind. Even in the US, renewables and electric cars are burgeoning, prompting the Climate Action Tracker to revise the United States’ projected emissions downward despite federal intransigence. “There are no other times. There is only now. Right now!”
Moreover, the rest of the world seems committed to a greener future. A Dutch appeals court just ordered the Netherlands to rachet up its climate ambitions. A host of similar lawsuits around the globe are pushing other countries to do the same. These lawsuits are changing the public narrative. Together with the IPCC report emphasizing that we are not yet committed to 1.5 C, the message is being heard: “There are no other times. There is only now. Right now!”
Perhaps the greatest signal that we may be experiencing a sea change is the emerging consensus on the human right to a healthy environment. On October 25, 2018, the UN Special Rapporteur for Human Rights and the Environment addressed the United Nations General Assembly for the first time. While the United States did not attend, many other countries did. Costa Rica, Switzerland, and Slovenia spoke strongly in favor of officially recognizing a human right to a healthy environment. Russia prefaced its remarks by stating that the Russian Federation recognized the right to a healthy environment. France has proposed its Global Compact for the Environment, which it describes as a “common road map for transforming our world.”
Together these developments suggest that there is a moment open for action. The United States midterm elections may give us a hint of how the federal government will move forward from here. Yet, regardless of federal action or inaction, we can seize the chance, we can remake our world. Now is the time to think big, to think beyond the narrowing limits of existing environmental law to what a truly sustainable society would entail. There are no other times. There is only now. Right now!
November 6, 2018 | Permalink
Monday, November 5, 2018
The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law, and ultimately to improve the environmental conditions of the world in which we live.
In 2018, we watched the U.S. regulatory environment change rapidly, even as we witnessed the escalation of visible and profound impacts from climate change. Alongside these events, and with full knowledge of the limited time left in which to address existential environmental challenges, the question the group attempted to tackle at our collaborative meeting was whether environmental law as we know it is up to the task of meeting these ongoing, escalating, and perilous threats.
Each of us has challenged ourselves to think deeply about where environmental law should be headed in the next decade or more, and how we might get there. The blogs we will be posting in the next two weeks discuss our individual conclusions about how we might reframe and reshape -- and ultimately, disrupt -- the environmental law landscape to better address the catastrophic, synergistic, and disruptive ecological changes portended by climate change, biodiversity destruction, and social inequality. We asked ourselves, what would it look like if we radically and fundamentally reoriented our environmental law and policy agenda? Is this possible, desirable, or both?
As we are a diverse group of scholars and thinkers, our conclusions are by no means uniform, but they share a common thread: this is not time for business as usual. The system requires significant, potentially disruptive changes, some of which may make us profoundly uncomfortable. As you will read, Sarah Krakoff and Shannon Roesler ask what law would look like if we conceived of global climate change as a social justice challenge and accordingly remade laws addressing poverty, wealth distribution, public infrastructure, and health care, while Keith Hirokawa and Jonathan Rosenbloom would reorient adaption to climate change by heeding and disseminating legal strategies local governments are formulating. J.B. Ruhl argues that to confront the urgent need for climate change adaptation, environmentalists will have to compromise in strategic ways, while Inara Scott asserts that it is time to bid goodbye to environmental law and start fresh by reconceptualizing a more inclusive, more effective “commons law.”
Continuing in this line of disruptive thinking, David Takacs suggests radically rethinking biodiversity laws before it is too late to preserve functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. Erin Ryan argues that with environmental laws under attack, we must think of creative, out of the box ways to defend it at multiple levels of legal hierarchy. Blake Hudson points out that many kinds of ecological disruption can be tied to land development -- where there has never been much effective law to disrupt in the first place. And in an essay that may surprise many, Robin Kundis Craig argues that in international environmental law, the role of the president may be overstated.
Melissa Powers writes about the urgent need for deep decarbonization, with clear targets and strategies to achieve them, as Vanessa Casado Perez tackles the problem of rethinking water law to address inevitable conflicts over water shortages. Turning away from the public sector, Jessica Owley suggests an expanded role for private actors in forwarding the goals of environmental law. Importantly, Katrina Kuh challenges environmental lawyers look more closely in our mirrors to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a “malignant normality” that deepens the climate crisis.
We hope these essays disrupt your thinking in provocative, productive ways, and look forward to opening a dialog with you about how we can reframe, reshape, and ultimately disrupt environmental law to meet the challenges of our day.
November 5, 2018 in Agriculture, Air Quality, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, North America, Sustainability, US, Water Quality | Permalink
Friday, September 28, 2018
On Monday, the United States Supreme Court will hear argument in Weyerhauser v. United States, a case involving the critical habitat designation for the dusty gopher frog. In some quarters, the case has been billed as a potential blockbuster, and the cert petitions and the Fifth Circuit dissenting opinions certainly presented it that way. In reality, however, this ought to be a low-stakes case. The reason why is straightforward: this case involves a fairly inconsequential regulatory provision and will affect only a small amount of land.
The core issue in Weyerhauser is whether the Fish and Wildlife Service appropriately designated as critical habitat a small area that the dusty gopher frog doesn’t currently occupy and probably couldn’t occupy without some land management changes. The area contains ephemeral wetlands and pine forests, both of which frogs need to survive, but because the forests are managed for timber harvests and thus kept dense, they lack the open canopy that the frogs prefer. The land’s private managers do not intend to allow those habitat conditions to return; instead, they would prefer to harvest timber or sell to developers. A critical habitat designation, they have suggested, would preclude that development, and these limitations are symptomatic, they claim, of a widespread conflict between critical habitat designations and economic development.
But the actual effect of a Supreme Court decision favoring the landowners (or the Fish and Wildlife Service) will be much more modest. Initially, this case will not put a stop to the practice of designating critical habitat. That’s a statutory requirement, which for the moment at least is not going away. The case also will not stop the practice of designating as critical habitat areas that species do not currently occupy. The Endangered Species Act specifically defines critical habitat to include unoccupied areas that are essential to the conservation of the species, so the statutory basis for unoccupied habitat designations will remain even after the Supreme Court decides this case. Instead, all that is at issue is the Fish and Wildlife Service’s and National Marine Fisheries Services’ ability to designate as critical habitat areas that aren’t presently suitable for use by the species. That’s likely to be a very small designation of even the unoccupied habitat designations, and those unoccupied designations in turn are tiny in comparison to designations of occupied habitat. In short, the holding will either nibble away at or maintain a small margin of overall critical habitat designations.
Additionally, critical habitat designations are generally of modest importance to both landowners and protected species. If an area is designated as critical habitat, then federal agency actions that would adversely modify that habitat cannot proceed. State, local, and private actions, however, face no additional regulatory constraint, unless they require federal funding or permits. The vast majority of activities (including logging and most land development) on private land do not involve federal funding or permits, so a critical habitat designation makes essentially no change to the regulatory landscape. Even where a federal nexus does exist, the legal landscape changes only slightly. Federal agencies also are prohibited from taking discretionary actions that might jeopardize the continued existence of listed species, and that prohibition also sometimes protects species’ habitats, even if they are not designated as critical. In fact, for a research project several years ago, I looked at several thousand “biological opinions” to see how often FWS or NMFS found that a project would cause adverse modification without also causing jeopardy. I didn’t find a single one. More recent studies have found that both jeopardy and adverse modification findings are nearly non-existent. And another recent study that compared land use change rates in areas designated as critical habitat and in non-designated habitat areas have found only trivial differences. That doesn't mean the designations are completely meaningless; agency biologists told me they did have a modest effect on negotiations over species protections. But there's an enormous difference between the real-world effects and the rhetoric in, and surrounding, the case.
So why did the Supreme Court take this case? The basic reason, I think, is that the Fifth Circuit dissents and the cert petitions did a good job of making critical habitat designations sound like federal land grabs that impose massive costs on regulated industries (the Fish and Wildlife Service also did itself no favors by adopting a cost-benefit analysis that puts prices on some far-fetched scenarios rather than considering what the agency actually does with critical habitat). That sort of characterization is well-calculated to arouse the ire of the current Court. And the Court’s eventual decision might well perpetuate that fiction. But if the Court takes the time to understand the statutory provisions at issue, and it looks at the empirical data associated with their implementation, it instead may wonder why it took this case.
- Dave Owen
dusty gopher frog image from fws.gov; photograph by John Tupy
Wednesday, August 22, 2018
Editor's note - This post has been updated multiple times since it was first posted, with information about new schools posted.
Several years ago, Dan Farber began compiling a post listing law schools that were interested in hiring environmental law professors. I've taken over that task, and this year's list appears below. I've listed schools and, if I have it, additional information about the opening.
Readers should be aware of a few things about this list. First, it is limited to tenured, tenure-track, and long-term clinical hiring. I also hope to write a post on entry-level fellowships , but I haven't received yet enough information about those to make a post worthwhile. That may be because little such hiring isn't happening this year (Oregon does have an opening), or because schools don't yet know their plans, or didn't see my email soliciting information. I also haven't included schools interested in visitors. That's because visiting positions tend to open up later in the academic year.
Second, this list may grow in the next few weeks, and I'll continue updating the post if it does, but it's likely to remain incomplete. I've compiled the list by looking at Prawfsblawg's data on entry-level hiring committees and by soliciting input from the environmental law professors' listserve. But there may be interested schools that (a) didn't post their interest on Prawfsblawg; (b) don't have faculty members on the listserve; and/or (c) choose to keep their hiring preferences to themselves. Strong environmental law candidates therefore may draw interest from schools that aren't listed below.
Third, some schools that are interested in environmental law hires are probably also looking at other subject areas. They may hire in those areas rather than environmental law, and they also may not hire at all.
With those qualifiers, the list:
The Allard School of Law at the University of British Columbia (in Vancouver) is hiring a tenure-track professor in the area of corporate sustainability. Here's a link.
Colorado is looking to hire an entry level and/or lateral tenure-track or tenured candidate in natural resources, energy, climate change, and environmental law.
Columbia is searching for a staff attorney in its environmental law clinic. Details here.
On Prawfsblawg, Duke lists environmental law as one of several areas of interest.
Lewis and Clark Law School invites applications from entry level or experienced candidates for one position to begin in the 2019-20 academic year. We seek candidates who could teach administrative law and constitutional law, as well as courses in one or more of the following areas: energy law, environmental law, food law, or health law. Lewis & Clark is an equal opportunity employer, and we encourage applications from candidates who would enhance the diversity of our community. Information about the Lewis & Clark Law School is available at https://law.lclark.edu/. Interested persons should send a resume or c.v., references, a writing sample, and an indication of teaching interests to Kerry Rowand, Executive Assistant, by email at firstname.lastname@example.org, or by postal mail at Lewis & Clark Law School, 10015 SW Terwilliger Boulevard, Portland, OR 97219.
Loyola University of Chicago is interested in hiring a tenure-track professor to teach environmental lawyer. From the ad: "Loyola University Chicago School of Law invites applications for a tenure-track position beginning in the fall of 2019, pending final approval of funding. We welcome applicants whose primary area of expertise is Environmental Law with an interest in teaching either Civil Procedure, Torts or Property. We are particularly interested in candidates whose scholarship aligns with Loyola’s mission of social justice..."
Nebraska is interested in several areas, and lists "environmental law (environmental law, water law, natural resources law)" in its "other needs" category.
On Prawfsblawg, Oregon lists "environmental (environmental justice, land use, and/or state/local government)" as an area of interest.
Penn State is hiring in several areas, and energy law is a priority.
Texas A&M is looking for a climate law professor. More details here.
UC Berkeley is interested in hiring an energy law professor.
UC Davis is interested in an entry-level hire, with environmental law one of several areas of interest.
UC Irvine is interested in hiring tenured environmental faculty.
The University of Miami School of Law is looking for an entry level (tenure-track) or lateral (tenured) hire in environmental law. I would read that broadly to include natural resources (especially water) and energy. An interdisciplinary interest is a plus as we have a good relationship with the University's Abess center for ecosystem science and policy and with the Rosenstiel school of marine and atmospheric science.
The University of Minnesota Law School plans to hire an entry-level or junior lateral candidate with expertise in a range of subject areas, including environmental law.
The University of New Mexico School of Law invites applications for faculty positions starting in the Fall of 2019. The law school anticipates hiring a tenured or tenure-track faculty member, or a visiting professor, to teach Oil and Gas Law and other related courses. Both experienced and entry-level candidates are encouraged to apply.
Official job description and online application forms for this opening can be found in UNM Jobs when posted in early Fall of 2018 (https://unmjobs.unm.edu). Recruitment will continue until the position is filled. For more information regarding the job postings, contact:
Chair, Faculty Appointments Committee
- Dave Owen
Thursday, August 16, 2018
BLM's Plans for Reduced Bears Ears and Grand Staircase-Escalante National Monuments: More Mining, Grazing, and Off-Road Vehicle Use Ahead
BLM recently released planning documents illustrating the outline of a management strategy for the five new units of the modified Bears Ears and Grand Staircase-Escalante National Monuments in southern Utah. Interior released summary reports for each Monument, containing categories of public comments received during the January - August 2018 comment period, along with future plans and any management alternatives the agency is considering. As expected, the planning for the modified Bears Ears units is more crystallized than for Grand Staircase, as Bears Ears in its original form was more recently established (by President Obama, in 2016) and had yet to be governed by any Monument-level management plan before Trump's 2017 reductions. The process for the modified Grand Staircase is proceeding more slowly, given this Monument’s relative age (it was established in 1996, by President Clinton) and more lengthy and complex management history.
BLM’s scoping report for the modified Bears Ears Monument includes four alternatives: A) the no-action alternative, which would require the agency to manage monument lands consistent with terms of the pre-2016 BLM and Forest Service multiple-use plans under FLPMA and NFMA, “to the extent they are compatible with” the 2017 Trump Proclamation reducing the Monument; B) a traditional monument management plan alternative, which would prioritize protection of Monument objects and values over other resources and uses, and would identify areas for additional long-term protections of resource values within the Planning Area; C) an adaptive management alternative, which would “emphasize protection” for Monument values and use adaptive management “to protect the long-term sustainability” of those values; and D) the preferred alternative, which is a restricted multiple-use approach that “would allow for the continuation of multiple uses of public lands and would maintain similar recreation management levels while protecting Monument objects and values.”
The summary report comparing alternatives sheds some light on the details of Alternative D, the agency’s preferred alternative, which incorporates a similar level of recreational vehicle use as under the pre-Monument plans, limited restrictions on recreational activities such as camping, reduced protections for cultural resources (due to nearly unrestricted off-road vehicle use and near unlimited access for recreation). It would also authorize grazing on over 90% of Monument lands, including sensitive riparian areas, and open 130,000 acres to timber harvesting.
The agency predicts that cultural resources will be particularly affected (read: damaged or potentially destroyed) by the preferred alternative, with over 60,000 acres containing documented archaeological sites being opened to off-road vehicle use and “right of way applications” (under R.S. 2477), along with increases in activities like livestock grazing and recreation. Similarly, the preferred alternative designates zero acres for wilderness-level management, and authorizes off-road vehicle use in all but 2,457 acres of existing inventoried wilderness quality areas.
For the three units of the modified Grand Staircase-Escalante National Monument (Grand Staircase, Kaiparowits, Escalante Canyons), the planning process is more detailed. The newly released documents reflect a NEPA scoping effort informed by recent public comments, and they include a proposed Resource Management Plan/draft EIS. The August 15, 2018 scoping report, which accompanies the draft EIS, notes that BLM is considering potential impacts to the reduced Grand Staircase Monument in the areas of air quality, climate, soils and water (focusing on uses such as grazing, OHV use, recreation, and mineral development as they impact soils and riparian areas in particular), special status species, forest management, wildlife and habitat, cultural resources, paleontological resources, aesthetic resources, dark sky values, soundscape values, wildfire management, wilderness quality lands, and other specific values included in the original Grand Staircase Proclamation.
In the RMP/draft EIS, BLM lists four alternatives for the three Grand Staircase units, including A) a no-action alternative, B) a conservation alternative, C) a restricted multiple-use alternative, and D) a resource use alternative. As with Bears Ears, the resource-use alternative is BLM’s preferred management strategy. It proposes to open over 600,000 acres of Monument lands to mineral development, subject to some constraints for documented cultural resources and authorizes livestock grazing on over 2.1 million acres (with only 106,927 total acres closed to grazing). It also proposes to maintain existing ORV travel management plans except in one new ORV management zone, and opening three previously closed ORV trails. BLM is open about the extractive use approach this alternative embraces, stating that “compared to other alternatives, Alternative D conserves the least land area for physical, biological, and cultural resources; designates no ACECs or SRMAs; and is the least restrictive to energy and mineral development.” BLM also recognizes that wildlife habitat will diminish based on increased ORV use and mineral development, and surface-disturbing activities, fence modification and maintenance, ORV travel, and vegetation treatment will be allowed “in big-game crucial seasonal ranges, birthing habitats, and migration corridors on a basis consistent with other resource use restrictions.” Surface-disturbing activities will be allowed in “crucial desert bighorn sheep habitat during lambing season subject to best management practices and mitigation.” Finally, this alternative includes authority to “dispos[e] of crucial wildlife habitat through Recreation and Public Purposes patents for public purposes.”
These planning documents signal a brave new world in Monument management strategy for BLM. The agency is open and transparent about its goal to manage the five new units of the Bears Ears and Grand Staircase Escalante National Monuments for increased mineral development, livestock grazing, and recreation (specifically, ORV use). While BLM indicates some intent to safeguard certain of the historical, archaeological, biological, and cultural resource values that Presidents Obama and Clinton included in their original proclamations establishing these monuments, others will no doubt be reduced, damaged, or possibly destroyed by the uptick in mineral leasing and other extractive uses.
- Hillary Hoffmann
Wednesday, August 8, 2018
Secretary of Commerce Wilbur Ross just released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few key points about what NOAA can and can't do here would be helpful.
1. Importantly, NOAA does not itself manage reservoirs, forests, or firefighting equipment. It just regulates activities that might harm threatened or endangered salmon (and other oceanic or diadromous species). So headlines saying that Secretary Ross ordered NOAA to "use" water to fight fires are not accurate. Instead, he has ordered NOAA to look favorably upon the requests of other federal agencies to use water that might otherwise have been allocated to fish protection.
2. NOAA also does not have general water management authority in California. Instead, the California State Water Resources Control Board, a state agency, is the primary regulator of water rights, including rights held by the United States Bureau of Reclamation. Consequently, NOAA does not have authority to just order that water be devoted to firefighting.
3. This statement has no legal meaning. As a legal matter, NOAA cannot waive the Endangered Species Act. Agencies cannot repeal statutes, even in emergencies, though people will sometimes understand if agencies cut corners when human lives are at stake. Federal water withdrawals of the kinds contemplated in the order therefore are legal only if they do not unlawfully jeopardize the continued existence of listed species, adversely modify their critical habitat, or take those species. Neither an agency administrator's statement nor a presidential tweet erases those statutory obligations.
4. Firefighters' water access isn't the problem. As already reported elsewhere, California officials have rejected claims that their firefighters lack access to sufficient water. So have independent scientists. This announcement isn't really about fighting fires. Instead, it's about using California's troubles to score a few political points. Indeed, if fighting fires is really the Administration's central priority and a lack of firefighting water really is the problem, we might expect to see another announcement that the Bureau of Reclamation, which delivers billions of gallons of water to farmers, will be redirecting much of that water to the firefighting effort. But don't hold your breath.
5. The Department of Commerce is not doing everything it can to help. In his statement, Secretary Ross stated that "the Department of Commerce is doing everything it can to help" with the fires. That is false. Neither Secretary Ross nor anyone else in the President's cabinet, nor the President himself, is taking one of the most important steps to address wildfires. Fires are becoming more intense for a variety of reasons, but one is climate change, which is making much of the West hotter, dryer, and more prone to fire. If Secretary Ross were actually doing everything he could to help, he would be loudly advocating for policies tor respond to climate change, and he would be condemning policies, like the recent proposal to weaken pollution standards for motor vehicles, that will make climate worse.
Lastly, an interesting tidbit about Trump's tweets: they included a claim that California had erred by passing laws that allowed some of its rivers to flow toward the sea, rather than being pumped into the Central Valley. That's an odd assertion to make in a tweet about fires; moving water out of northwestern California isn't a very good way to fight fires in northwestern California. I also wonder if Trump is aware of the original source of the laws he is lambasting. If he has a coherent idea about the laws he's referring to, then he's probably talking about decisions, made decades ago, to designate California's north coast rivers as wild and scenic, which precluded the construction of dams and water-diversion works (other than a diversion from the Trinity River). The governor who signed those laws into law? Ronald Reagan.
- Dave Owen
Tuesday, August 7, 2018
It is the fiftieth anniversary of the publication of Edward Abbey’s Desert Solitaire, which popularized the stark beauty of southeast Utah’s vast and seemingly untouched landscapes. Abbey’s later writings, including the novels The Monkey Wrench Gang and Hayduke Lives, cemented his reputation as a radical scallywag. These books embraced vandalism in defense of the environment, and inspired the founders of EarthFirst!, whose tactics and philosophy posed a deliberate challenge to the accommodationist approaches of mainstream environmental groups.
Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort, we need his irascible, cranky, and irrepressible voice today more than ever.
But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienating version of what it means to be “truly wild,” or “truly radical,” or “truly environmentalist.” The problem with re-lionizing Abbey in 2018 is not just that he was sexist, racist, and xenophobic. But also that those views were sewn into his brand of so-called radicalism. They constituted the lenses through which he saw the landscape he aimed to protect.
What Abbey saw were beautiful empty places where white men (quite specifically) could be free and wild. Their version of wilderness preservation, even supplemented by the occasional nod to the evils of growth-dependent and extraction-based economies, was oblivious to the structures that enabled their seemingly unmediated encounters with the desert. Those structures included brutal and unscrupulous campaigns to dispossess Native people of most of southeast Utah. They included the failure of post-Civil War efforts to democratize homesteading by including eligible African Americans eager to flee the South. And they included, time and again, the cultural acceptability of exploiting women, both by treating them as fungible sex toys and by relying on them to mind the homestead and raise the young’uns. Abbey’s version of radical environmentalism assumes away all of the inequalities baked into his ability to be a free man in canyon country. Abbey also managed to alienate lots of white men while he was at it. He scorned ordinary work as part of his critique of corporate and industrial interests and romanticized manual labor even while he railed against ranchers and farmers in his midst.
Here let me pause a moment to acknowledge two things about Abbey that explain his enduring appeal to many environmentalists. First, his nature writing is beautiful. It has that dual-quality of inspiring you to visit if you have never been, and evoking waves of longing to return if you have.
Second, like Henry David Thoreau, Abbey taps into an elemental longing for “wildness.” In 1865, Thoreau wrote “that in Wildness is the preservation of the world,” and by that he meant not just places that were unmanaged and untamed, but the habits of mind inspired by such places. Thoreau wrote of his preference for bogs and swamps over cultivated gardens, but also of the wildness in Hamlet and The Iliad versus the tame prose of Chaucer, Spencer, and Milton. “The poet today, notwithstanding all the discoveries of science . . . enjoys no advantage over Homer.” Similarly, in Freedom and Wilderness, Wilderness and Freedom, Abbey penned the following moving passage about north Jersey: “When I lived in Hoboken . . . we had all the wilderness we needed. There was the waterfront with its decaying piers and the abandoned warehouses, the jungle of bars along River Street and Hudson Street, the mildew-green cathedral of the Erie-Lackawanna Railway Terminal.” For Abbey and Thoreau, wildness involved a state of mind, not just the places that could inspire it. This aesthetic has a long pedigree. In the western tradition, Kant and Burke explored the sublime and the abject, two opposed cognates of the wild. Freud plumbed the uncanny, and art historians have documented the swings between meticulous perfection and emotive explosiveness in painting, sculpture, and other art forms. Abbey brought this aesthetic to the desert southwest. For doing so, he earned devoted followers in his own time and generations of acolytes afterward. Had he just done that, we could celebrate his literary contributions and stop there.
But Abbey did more. He embraced a xenophobic and overtly racist version of anti-growth environmentalism. In 1963, during the heart of the civil rights movement, Abbey wrote:
According to the morning newspaper, the population of America will reach 267 million by 2000 AD. An increase of forty million, or about one-sixth, in only seventeen years! And the racial composition of the population will also change considerably: the white birth rate is about sixty per thousand females, the Negro rate eighty-three per thousand, and the Hispanic rate ninety-six per thousand. Am I a racist? I guess I am. I certainly do not wish to live in a society dominated by blacks, or Mexicans, or Orientals. Look at Africa, at Mexico, at Asia. Garrett Hardin compares our situation to an overcrowded lifeboat in a sea of drowning bodies. If we take more aboard, the boat will be swamped and we’ll all go under. Militarize our borders. The lifeboat is listing.
There is a long pedigree to this kind of thinking too. The first wave of American conservationists included prominent white supremacists, such as Madison Grant and Henry Fairfield Osborn. They associated nature preservation with racial superiority and employed the disgraced science of eugenics to justify their approach. Sadly, these views are not limited to marginal figures in the conservation canon. John Muir, founder of the Sierra Club and literary antecedent to Abbey, espoused ugly anti-Indian views and was also largely apolitical with regard to the important civil rights and egalitarian movements of his day. Even Aldo Leopold, who penned the justly celebrated “Land Ethic,” held some members of the human community in higher esteem than others. In Vanishing America: Species Extinction, Racial Peril, and the Origins of Conservation, Miles Powell unearths Leopold’s unsavory statements about immigration and population growth. In an exchange with natural historian William Vogt, Leopold railed against Asians and other non-Western European immigrants who threatened to overrun the country with their high rates of reproduction. There is a through-line from these Malthusian thoughts to Paul Ehrlich’s Population Bomb, which became the basis for late-twentieth century versions of the immigration panic within some environmental circles. The Sierra Club successfully fended off an anti-immigrant board take-over in 2004, but the fight was a reminder that white nativist ideologies still lurk within some strains of environmentalism.
Yet many other environmentalisms also exist. The environmental justice movement, which gained prominence through battles over racially discriminatory siting and permitting, today includes broad redistributive concerns. Social ecologists have long argued that there will be no environmental protection as long as capitalism, with all of its attendant exploitative hierarchies, forms the basis for our economic system. In many indigenous worldviews, leading an ethical and moral life is defined in the context of taking care of the Earth and all its creatures, including human ones. And most mainstream versions of environmentalism today include at least rhetorical nods to justice, equality, and sustainability. The science of climate change and other global environmental threats make it naïve, at best, not to consider the connections between consumption, inequality, and environmental protection.
Given the long, hard road ahead to make good on efforts to dismantle local and global inequality, combat climate change, and sustain/create just and equitable communities, it is past time to celebrate Ed Abbey, the person. Not only was he sexist and racist; he was politically shallow. He espoused a naïve anarchism, taking potshots at the state, without appreciating that without it he would have had no Arches, no Canyonlands, no seemingly “empty” places. He criticized corporate capitalism for its consumerism, but not its production of racialized inequality. Lionizing Abbey today does nothing to bring the redistributive and justice-oriented strands of environmentalism together. Worse, Abbey-worship is likely off-putting to young activists of color and their allies, who see protecting places like Bears Ears National Monument as inextricably linked to addressing the extreme trauma that affects Native people outside of monument boundaries. Abbey thoughtlessly mused that “compulsory birth control” might be a necessary part of the solution to Navajo poverty. Today’s intersectional environmentalists understand that freedom and justice for Navajo women is inseparable from preserving their sacred lands. They are just as likely to work for non-profits serving poor indigenous clients as they are to throw their hearts and souls into protecting public lands. Some do both, practically simultaneously. And so it should be.
Go ahead; read (most of) Desert Solitaire and revel in the poetry of a desert sunrise. But if you are looking for heroes, look here instead. Or here. Or wake up for that sunrise yourself, embrace intersectional and egalitarian environmentalism, and look in the mirror.
- Sarah Krakoff
Tuesday, July 24, 2018
The Bureau of Land Management just announced that it would no longer require compensatory mitigation for impacts to public lands. This fits with a larger theme. Since the early days of the Trump Administration, officials, including Interior Secretary Ryan Zinke, have made no secret of their disdain for compensatory mitigation practices. And they have worked to undermine initiatives, like efforts to protect the sage grouse (and avoid its listing under the Endangered Species Act), that have relied heavily upon compensatory mitigation.
Their positions have generated a few puzzled reactions. In some circles, compensatory mitigation is viewed as a market-friendly type of regulation, largely because it gives otherwise-prohibited projects flexibility to proceed so long as their proponents strike deals to provide protection at a other places or times (though that isn't the way today's announcement works; instead, the administration is just saying it will allow projects to proceed without asking for any compensation for unavoidable damage to public resources). Academic analyses often describe compensatory mitigation as "neoliberal" policy, which carries the implication that at least some conservatives ought to like it.
In a recently-published essay, I try to make some sense of the administration's attitudes, and to give them some historical context. The conclusion, in a nutshell, is that they aren't as surprising as they might initially seem. Compensatory mitigation policy has emerged primarily from government agencies, rather than directly from businesses, and it appeals to regulators and to businesses that want to find creative compromises between businesses' needs and the goals of environmental law. To an administration that disdains agencies and wants to tear up environmental law (and also doesn't care much for economics), there isn't as much to like.
So, unfortunately, we can probably expect to see more policies like the one emerging today. That's too bad. Compensatory mitigation policy is hardly perfect, but it's a lot better than letting extractive industries damage public resources without providing any compensation in return.
- Dave Owen
sage grouse image from fws.gov.
Thursday, July 19, 2018
Today, the Fish and Wildlife Service released three proposed rules designed to change ESA implementation (the National Marine Fisheries Service is a coauthor of one of the three rules). This post, based on a first read of the proposed rules, identifies seven particularly important elements or themes.
1. The 4(d) rule change is the most important element of the rules. The three rules contain many proposed changes, but I think one is by far the most important. That’s the Fish and Wildlife Service’s proposal to abandon its tradition of extending ESA section 9’s take prohibition to newly-listed threatened species, and to make the absence of such protection the new default. In other words, at present, when FWS lists a new species, it extends section 9 take protections to that species unless it affirmatively decides to follow a different course. Going forward, if this rule is finalized in its present form, FWS would not provide those protections unless it decides to follow a different course.
Why does this matter? The answer, which gets a little bit into the ESA weeds, is that much of the protection FWS provides comes through section 9. That isn’t because FWS often directly enforces section 9 against landowners; for all the talk about section 9’s fearsome reputation, enforcement resources are actually incredibly thin (and citizen suits are rare). Instead, the fear of section 9 liability sometimes induces federal agencies, along with state or private entities that need federal permits, to engage in consultation processes. And those consultation processes typically result in binding “reasonable and prudent measures” that are primarily designed to limit take, but that often provide more general benefits to species.
To put all of that in plain English, eliminating the 4(d) rule will mean that at least some threatened species have less protection.
2. The most important change is also one of the least explained. FWS’s stated reasons for eliminating its default 4(d) rule are (a) it wants to be consistent with the practices of the National Marine Fisheries Service, which doesn’t have an analogous rule; and (b) it thinks species-specific 4(d) rules work better than a blanket rule. The former explanation doesn’t explain much; consistency is nice in many circumstances, but there’s no conflict here between the agencies’ different approaches (they’re working with different species); nor does FWS provide evidence that its traditional approach wasn’t working. And the latter reason doesn’t explain anything. Species-specific 4(d) rules do have their advantages, but the current default rule doesn’t do anything to eliminate FWS’s ability to adopt species-specific 4(d) rules. It just sets a different default outcome when FWS chooses not to prepare a species-specific 4(d) rule.
I strongly suspect the real reason for the 4(d) change is a simple desire to weaken ESA protections and thus, hopefully, reduce regulatory burdens (though it won’t work out that way if the reduced protections just lead threatened species to become endangered more quickly). The stated justifications look an awful lot like smokescreens.
3. Other than the 4(d) rule, there’s a striking amount of continuity. In the other realm where I follow rulemakings particularly closely (Clean Water Act jurisdiction), the Trump Administration is in a headlong, sloppy rush to undo whatever the Obama Administration did. Here, in contrast, many of the proposed changes are subtle, and they reflect agendas pursued by prior administrations. A move toward programmatic consultations, for example, is entirely consistent with an Obama-era push toward landscape-scale planning and permitting. And in many places, the preamble refers to a 2015-16 rulemaking process to emphasize this theme of continuity. Similarly, the consultation rule’s emphasis on achieving efficiency through pre-set understandings between action agencies and FWS and NMFS is consistent with on-the-ground practices that have been evolving for years. In other words (and, again, other than the 4(d) rule), this actually looks a lot like a technocratic rulemaking, with the longstanding priorities of the agency tinged but not dominated by the politics of the present administration.
4. The rules appear to back off, a little, from designating unoccupied habitat as critical habitat. Several adjustments in the rule appear designed to move FWS toward smaller designations of critical habitat, particularly where that habitat is presently unoccupied. For example, the new rule would reinstate an express preference for limiting designations to occupied habitat unless that occupied habitat is insufficient to sustain the species. And in an apparent nod to the Markle Interests case currently before the Supreme Court, FWS states that it will be reluctant to designate unoccupied habitat if landowners would need to take significant steps to make that habitat hospitable to species (there’s also a passage—specifically aimed at jaguar habitat designations, I would guess—about not designating habitat in this country when the habitat a species most needs is abroad). But none of these changes are phrased in absolute terms, which means FWS will still have discretion to continue designating large amounts of unoccupied habitat (something that did happen with increasing frequency during the Obama years).
5. The “adverse modification” definition keeps getting mushier. The ESA prohibits federal agency actions that are likely to cause “adverse modification” of critical habitat. For years, FWS and NMFS have struggled to explain and apply that prohibition. They have never accepted the idea that any adverse change to critical habitat qualifies as adverse modification, and instead have wanted to read into the statute an exception for small-scale modifications. But finding language to describe that exception (and to do so in ways that aren’t too obviously inconsistent with a textualist reading of the statute itself) and figuring out how to implement it have been ongoing struggles (more on that in this article and this blog post). The services’ general approach has been to use ambiguous language—terms like “appreciably modify” or “considerably reduce”—to explain how much modification is too much, and then, in practice, to say that small adverse modifications of habitat don’t qualify as “adverse modification” within the meaning of the statute—even when they also acknowledge that species are being pushed toward extinction by the cumulative effects of many small changes to their habitat.
The current rulemakings’ contribution to this situation is three more wiggle words. According to the new rule, a modification is only adverse if it “appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.” That language seems designed to give the services more permission to step back and view negative habitat effects at a scale at which they don’t really seem noticeable.
To be fair, the services have a difficult challenge here. Figuring out how to draw the lines between de minimis harms and harms that are incremental but cumulatively significant is hard. And while my research found that the services were soft-pedaling the adverse modification prohibition, I also found that they were still trying to provide ample habitat protection through other means. But I still think it’s problematic to use rulemakings to take fairly straightforward Congressional language and turn it into mush.
6. It would be nice to have more clarity on “expedited consultations.” The regulations propose a process called expedited consultation, which would involve faster consultations for projects with fairly well-known impacts. That sounds like a good idea, particularly for projects like culvert replacements that have fairly well-known short-term impacts and long-term benefits. But the proposed consultation rule is fairly vague about how these expedited consultations would work. Which parts of the normal consultation process would be skipped? And how would the expedited consultation process differ from the already-common practice of adopting standardized conservation measures and reasonable and prudent measures for recurring project types? I’d like to know, but the proposed rule doesn’t really say.
7. There are many requests for comment on subjects where the agencies don’t actually offer a proposal. In rulemakings, agencies often invite comment on matters not directly addressed in the proposed rule. There’s nothing wrong with doing that, so long as the agency’s final rule is a “logical outgrowth” of the proposal. But given this administration’s track record of trying to circumvent normal rulemaking procedures, these requests for comment make me wonder if the political higher-ups at DOI are holding more major changes in reserve, and are planning to unveil them in the final rule, saying something like, “of course it’s a logical outgrowth! We specifically invited comment on that issue!” Courts most likely would make short shift of those arguments. But given the current administration’s impatience with administrative law, some concern still seems worthwhile.
There are many more elements to the proposed rules, and many more things that could be said. But my overarching conclusion is that the proposed 4(d) rule is the big story here, and otherwise these changes aren’t drastic. Some are somewhat promising; some are somewhat problematic; and some could go either way depending upon how they are fleshed out.
- Dave Owen
An additional note, added after the initial post: one other potentially important change involves the regulations' definition of "the effects of the action." In the new regulations, effects would only count if they are "reasonably certain to occur." That's not an entirely new concept; the regulations previously used that same language with respect to "indirect effects." But the new rule would extend it to all effects.
That matters because the language, taken literally, would exclude effects that are possible but uncertain. For example, suppose that a proposed project creates what scientists estimate to be a forty percent chance of releasing a problematic invasive species into an endangered species' habitat. A reasonable person would take that risk into account when deciding whether to allow the project (and, more importantly, what steps to take to reduce the risk of the invasion; in practice, consultation is all about making adjustments). But the new language might appear to give agency staff license to ignore the effect, saying that it is not "reasonably certain to occur."
In the preamble, the services suggest that they just intend to exclude "speculative" effects, and that absolute certainty isn't necessary. But given the uncertainties of environmental science and human behavior, many effects fall somewhere between certainty and speculation. The services ought to find language that better accounts for that intermediate zone.