Monday, March 1, 2021
Last fall, we ran a post about schools looking to hire environmental law professors, or people in related fields. In the last few weeks, schools have posted more information about that subject. The latest:
Maine is looking for a visitor to teach property, and that person might also have environmental law interests. The announcement is here. I taught in Maine for eight years, and I can vouch for the school, the city of Portland, and the state as a wonderful place to spend a year (or more).
Wyoming is looking for a visitor to teach torts, another subject that overlaps nicely with environmental law. Interested candidates should email Michael Duff (Michael.Duff@uwyo.edu) or Sam Kalen (email@example.com).
Iowa recently announced that it is looking for a lateral hire in environmental law. I didn't see the announcement on the school webpage, but you can find it here, among other places.
- Dave Owen
Tuesday, November 3, 2020
John Cruden, who among many other things was a longtime Justice Department leader in the Environment and Natural Resources Division, was awarded the Lifetime Achievement Award for Environmental Law on October 20 by the American Bar Association (ABA) Section of Environment, Energy, and Resources. At the Justice Department, John first led the Environmental Enforcement Section before being promoted to Deputy Assistant Attorney General and eventually being named Assistant Attorney General under President Obama. In addition to his Justice Department service, John also has served as the president of the D.C. Bar, chief legislative counsel for the Army, president of the Environmental Law Institute, chair of ABA SEER, and president of the American College of Environmental Lawyers. He continues to practice environmental law as a principal at Beveridge & Diamond PC in addition to teaching at The George Washington University and Santa Clara University law schools. Those of us who have worked with John in any of these roles know and appreciate the integrity, diligence, intellect, and wisdom he brings to his work. It is hard to imagine environmental law without John Cruden's contributions. This award is extremely well deserved, especially during these times when those in government service are facing so many challenges.
November 3, 2020 | Permalink
Monday, November 2, 2020
The University of Michigan Law School invites junior scholars to attend the 7th Annual Junior Scholars Conference, which will take place virtually on April 16-17, 2021. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Michigan Law journals have also agreed to give serious consideration to publish selected papers. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.
Applications are due by January 4, 2021.
Further information and the full call for papers can be found at the Conference website.
November 2, 2020 | Permalink
Sunday, September 13, 2020
Two weeks ago, as the West was just beginning to go up in smoke, I recorded a wildfire-101 video for my students and interested colleagues. My goal was to explain, in about fifteen minutes, why we're seeing so much fire and what law has to do with it. I've received enough positive response that I decided to make it generally available, so here it is.
If you do watch it, I recommend blowing up the slides, many of which come from papers published by experts in the field. The graphics are much more interesting than me talking.
The larger point of the talk is straightforward: this didn't just happen to us. Our smoke and fire problems are consequences of policy and law. That's ultimately a hopeful message, because policy and law can change, though of course it won't be easy.
- Dave Owen
Wednesday, August 19, 2020
For the past few years, I’ve written a post listing schools that are interested in hiring tenured or tenure-track environmental law faculty. This year's list appears below.
Readers should be aware of a few things about this list. First, it is limited to tenured, tenure-track, and long-term-contract hiring. I haven't made an effort to identify visiting positions. 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 also likely to remain incomplete. I've compiled the list by looking at Prawfsblawg's post on entry-level hiring committees and by soliciting input from the environmental law professors' listserve. 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, 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, here’s the list. And if you’re thinking it looks a little short this year, well, yes, it is. That could because this year’s turbulence has schools delaying their hiring announcements. But it could also be because this year’s turbulence means many schools won’t be hiring at all.
Columbia is looking to replace its environmental law clinic director, who is retiring at the end of this academic year.
Iowa is seeking candidates in environmental and natural resources law (along with a few other areas). It seeks entry level or lateral candidates.
Notre Dame is looking for entry level and/or lateral hires, and environmental law (along with related fields) is an area of priority.
Utah is searching for candidates in multiple fields, one of which is environmental law. Candidates who can combine environmental law or energy law with business, civil procedure, property, administrative law, and/or federal courts will be particularly attractive. Untenured or recently tenured laterals will be considered.
Tuesday, June 2, 2020
The coronavirus pandemic offers lessons for leaders on every level about how—and how not— to manage complex interjurisdictional challenges, like the environment, which unfold without regard for political boundaries.
In a matter of months, Covid-19 has laid bare the interdependence of the world on every front imaginable: global public health, economic growth and development, social and professional networks, transportation and migration, and of course, ecological and environmental systems. No single nation has the coronavirus. No one state is economically disrupted. There is no single ethnic group, occupation, or corner of the world that has been impacted. All of us, in every corner of the world, in every profession, and in every ecosystem are affected. Since the virus was introduced, it has surfed the channels of our interconnectedness until we were all united in the grip of its devastation. Similarly, unless we can act in unison to contain it, it will continue to surf those channels, exposing our interconnectedness despite all efforts to pretend otherwise.
In this way, the virus and our response to it betrays the fundamental problem with which environmental governance has always contended in our interdependent, multijurisdictional world: we cannot do it alone. The major environmental problems with which we wrestle—air and water pollution, biodiversity preservation, ecosystem integrity, climate stability, and all the others—are bigger than we are, and certainly bigger than any one of these jurisdictions. No matter how skilled or well-intended, a single town, city, state, or even nation cannot effectively cope with the critical environmental challenges of our time, because they extend beyond these arbitrary political boundaries. To accomplish our goals, we have to coordinate our efforts.
The pandemic exposes this lesson even within the boundaries of a single nation, trying to act as one. For example, the disappointing U.S. response in the early days of the pandemic highlights the futility of a purely state or local response to an interjurisdictional problem of this magnitude. The virus—like pollution—jumps so easily from people in one state to people in neighboring states that inconsistent local regulatory responses are doomed to failure. If New Jersey stays in lockdown but Pennsylvania opens up, New Jersey residents will get sick. Similarly, if Florida limits offshore oil drilling while Louisiana does not, all Gulf of Mexico coastlines are vulnerable to the next spill.
The U.S. federal government was also considerably better positioned than any individual state or city to deploy its unique array of technical expertise, fiscal resources, and legal authority in preparation for the pandemic. For example, the national government could have invoked the Defense Production Act, which enables the President to mobilize domestic industry to produce supplies during an emergency, such as respirators, masks, test kits, and swabs. Without centralized coordination to secure or produce these resources in advance, many states have now devolved into scrambled and unproductive competition for the woefully scarce existing resources. These are exactly the kinds of tasks for which coordinated national capacity outperforms isolated local action. Only the federal government could marshal necessary resources on a national scale, by means of both market force and sovereign authority—just as a nationally coordinated response to climate change is direly needed.
At the same time, the pandemic response also exposes the value of coordinated multilevel governance, and federalism in particular, for coping with complex interjurisdictional problems. Even strong national planning for the pandemic would require localized implementation and enforcement, and more local levels of government are always better positioned to understand the constellation of geographic, demographic, economic, and cultural factors that will either facilitate or complicate implementation in each unique community. In administering virus tests, coordinating food assistance, or delivering public education from lockdown, the state and local governments are far better positioned than the national government to deploy these kinds of expertise. Just as they are in implementing low-carbon transportation infrastructure and stormwater pollution controls on the ground.
Most dramatically, however, the failed U.S. response to the pandemic highlights the regulatory backstop value of federalism as a system of good governance, because of the way federalism allows for simultaneous response by different levels of government in realms of jurisdictional overlap. The Trump Administration has been widely condemned for its lack of leadership during the early pandemic, from its failure to respond to early warnings to its later abdication of responsibility for a national response plan. The Lancet, a leading world medical journal, recently excoriated the Administration for politicizing its own public health response agency, the Center for Disease Control, further compromising the nation’s response. In its place, however, many state governors rose to the occasion, providing leadership and role modeling to fill the national void. The checks and balances built into U.S. federalism create inefficiencies by design, which can be frustrating indeed. But during the pandemic, citizens in those states could be grateful that it enabled someone to take the reins at a critical moment when the Commander in Chief faltered.
Alternate leadership emerged in red and blue states alike. For example, California Governor Gavin Newsom acted quickly to institute shelter-in-place orders to mitigate the spread of virus from neighboring Washington, admirably flattening the curve in his state in comparison to other parts of the country. Kentucky Governor Andy Beshar began offering statewide virus testing to all comers as early as April, well in advance of many other states. New York Governor Andrew Cuomo deployed his state’s considerable economic might to commission the production of medical supplies and equipment that were needed. Taking advantage of the same regulatory backstop feature of federalism, twenty-four state governors representing 55% of the U.S. population united to form the U.S. Climate Alliance after President Trump withdrew the United States from the Paris Climate Agreement, pledging to lead on critical climate governance initiatives abdicated by the federal government.
The pandemic response and environmental governance are both dynamic projects of policymaking and adaptation. Reasonable minds may differ on the ideal balance between public health and economic concerns associated with the coronavirus lockdowns. Many U.S. citizens support President Trump’s laissez faire approach, and not every resident of New York or California has been happy with their governors’ actions. However, these leaders acted far more decisively than the President at a time where critical governance decisions had to be made, and polls confirm that the vast majorities of citizens in these states supported their choices. The leadership that these and other state leaders have shown give Americans cause for hope that the U.S. will improve our unfolding pandemic response. We can similarly hope that the Covid-19 experience will embolden subnational leaders to show the same vision on climate leadership and other matters of interjurisdictional environmental governance moving forward.
--Erin Ryan, Associate Dean for Environmental Programs and Elizabeth C. and Clyde W. Atkinson Professor at the Florida State University College of Law, was a Rachel Carson Center Fellow in 2019. She has authored many works on environmental governance, including Federalism and the Tug of War Within (Oxford, 2012).
*This essay was first published by the Rachel Carson Center on Seeing the Woods, May 31, 2020
Photo Source: FolsomNatural via flickr CC BY 2.0
Thursday, April 30, 2020
Imagine, for a moment, that our current discussions about coronavirus shelter-in-place orders were happening in a somewhat different political reality. In that alternative reality, the President and state governors agree that states need to be key players in decisions, but they also agree that the states should not set fifty different policies and that important national interests are at stake. So they decide to form a set of regional agencies, each with federal and state commissioners, and to charge those agencies with setting shared opening dates—and perhaps with authority to oversee distributions of protective equipment and other key elements of the pandemic response. (Because the governors and the presidents understand how separation of powers works, they also seek, and obtain, state and federal legislation authorizing participation in these new agencies.) Would these agencies make sense? And would they be constitutional?
In a forthcoming paper, Hannah Wiseman and I argue that the answers to these questions are yes and yes. Joint federal-state agencies, we argue, are a sensible and constitutionally permissible response to policy challenges, and they deserve more attention than they have traditionally received. Our subject matter isn’t the pandemic; lacking foresight and, perhaps, a talent for marketing, we chose interstate water management and energy facility siting as our most frequently recurring examples. But we think our argument could apply to many other realms, and pandemic response could be one of them.
The policy argument for joint agencies is ultimately straightforward: shared governance can make sense for shared issues. Though legal and policy thinkers are accustomed to asking whether the federal government or the states will better handle an issue—implicitly assuming the answer is one or the other—most policy challenges straddle federal-state boundaries. We can compensate for that reality by just empowering the feds or the states or we can create cooperative federalism systems that involve both, often through complex administrative arrangements. Both approaches sometimes work. But in some circumstances, a conceptually simpler approach—creating a joint body to address overlapping issues—could provide more simplicity and efficiency and lead to better decisions.
The constitutional argument, at its core, is similarly straightforward: no specific constitutional provision forbids this sort of arrangement, and broader constitutional principles favor it. That doesn’t mean the analysis is simple; potential issues might arise with the Dormant Commerce Clause, anti-commandeering doctrine, delegation, appointment, and removal, and with the broader sense that the federal Constitution is designed to keep federal and state governments apart. But all of those arguments, we argue, fade upon close examination.
We hope our argument also holds some value for the broader discourse about federalism. In public discussions about coronavirus response, that discussion has often seemed wedded to an archaic vision of federalism, in which federalism and states’ rights are one and the same. But that’s not how American federalism actually works or, we argue, how the Founders intended it to work. In the real world (as many, many commentators before us have pointed out; this part’s not original), American federalism is all about overlap. It is a set of doctrines governing realms of shared authority, with both the federal government and the states playing significant roles, rather than defining and maintaining separate spheres. That means we ought to have abandoned, and abandoned long ago, the simplistic notion that you’re only a federalist if you want more state power and you’re opposed to federalism if you perceive the need for a federal role. But it also means we need to think more about how governance arrangements can actually succeed, rather than just creating uncoordinated messes, in zones where both federal and state governance is active. Joint federal-state agencies, we argue, are one potential way to bring some order to that complexity.
We probably won’t get such an agency for this pandemic. The states that are most actively engaged in responding to the pandemic will have little interest, understandably, in working with the appointees of a president who lurches between denialism, incompetence, and active attempts at sabotage. But for a future pandemic or some other policy challenge, and perhaps with some different people involved, that kind of structured collaboration could make a big positive difference.
- Dave Owen
Tuesday, March 31, 2020
During the COVID-19 public health crisis, governments across the country – and the world – are trying to strike the appropriate balance between the actions needed to limit the spread of the disease, such as stay-at-home orders and mandatory closures, and the costs imposed by those very same actions, ranging from social to economic to physiological.
One specific action that many federal, state, and local governments in the United States are taking is to limit or entirely close off access to public open spaces, such as local playgrounds, state parks, and national forests and parks. The loss of access to public outdoor spaces is yet another disruption posed by the pandemic, and a challenging one in light of the fact that exercise and exposure to nature are important parts of maintaining both physical and mental health. However, such closures are being seen as increasingly necessary to ensure compliance with social distancing and travel limitations, and to reduce pressure on first responders and health systems in local communities.
When a decision to limit or close access is made by the governmental entity with jurisdiction over a particular public space – such as a city with a municipal park, or a state with a state park, or the federal government with a national park, national forest, or other federally managed public lands – and the closure applies broadly to all members of public, the legal authority for those decisions is generally clear-cut.
For example, the National Park Service, Forest Service and many state park agencies have issued numerous closure orders of national forests, national parks, and state parks over the past few weeks to assist in efforts to limit crowds, protect employees, and reduce possible pressures on local health facility resources. In the case of federal public lands, such as national parks and national forests, these decisions have often been made in cooperation with local governments, but the closure decisions themselves are ultimately the responsibility of the federal agency with jurisdiction over the particular public lands, who have the legal authority under federal law to issue such orders.
But some federal public lands – particularly BLM lands and trails within many national forests – remain open to the public. In part, this is because of the physical attributes of these types of public lands: unlike local, state, or national parks, national forests and BLM lands typically have many points of entry via multiple trailheads, waterways, and unfenced boundaries. Furthermore, even under the best of circumstances, the federal agencies that manage these public lands have limited personnel to monitor the vast expanses under their jurisdiction.
In light of these limitations, some local governments are attempting control public access to federal public lands within their boundaries. In particular, a number of local governments have taken actions that prohibit – directly or indirectly – non-local residents from accessing federal public lands, while continuing to allow local residents access. Do local governments have the legal authority to do this?
The answer depends in large part on the precise method a local government utilizes to deter non-local residents from accessing federal public lands within their boundaries, with some methods on firmer legal footing than others. (The question of legal authority is separate question from whether local governments should be able to prohibit non-local residents from accessing federal public lands during the COVID-19 pandemic. This post focuses on the former question of legal authority; the latter normative question raises complicated policy concerns and public health and safety questions beyond the scope of this analysis.)
Local governments are on the firmest legal footing when they do not assert direct control over who can access federal public lands, but rather when they take steps that indirectly limit the ability of non-locals to access those lands. For example, a number of local governments have issued orders like that issued by Moab County, Utah, prohibiting new bookings at all local hotels, bed and breakfasts, private campgrounds, and short-term rental housing such as Airbnb, with limited exceptions for emergency personnel and self-isolating individuals. By eliminating most short-term accommodation options, these local governments hope to reduce the likelihood non-residents will travel to their jurisdiction. As these types of actions are typically within the scope of legal authority that local governments with home rule have under emergency powers pursuant to state law, and the actions do not assert direct control over federal public lands, they would appear to be legally valid methods to (indirectly) limit non-residents' access to federal public lands within their jurisdiction.
However, short-term accommodation closures may not effectively deter non-residents who want to access federal public lands and who do not need accommodation (either because those individuals can make day trips and drive back to their own residence at night or because they could camp within the federal public lands, particularly if dispersed camping is permitted). Therefore, some local governments seeking to limit access by non-residents have exercised more robust assertions of local control over access to federal public lands.
For example, San Juan County (Colorado) has issued a notice that law enforcement will ticket or tow vehicles with out-of-county registrations that are parked on roads within the county that are used to access trailheads within national forests or on BLM lands. Although ticketing non-local vehicles versus local vehicles might implicate constitutional concerns about equal protection or right to travel, in light of the emergency powers the local government is acting pursuant to, the county's actions would arguably satisfy the applicable standard of review, whether strict scrutiny or a lesser standard. And as long as the local government has been delegated home rule authority (or another specific source of authority from their states to control vehicular activity and parking along county roads), then this type of local action would appear to be a legally permissible way for counties to indirectly control access to federal public lands and limit non-local use of those lands.
Finally, some local governments are going beyond the type of indirect actions described above and appear to be asserting direct local control over who is permitted on federal public lands within their boundaries. These scenarios raise the most significant questions about the source of local governments' legal authority. For example, Gunnison County (Colorado) issued a notice indicating that non-residents are not permitted on public lands within the county: the county's social media feed refers to the federal public lands as "Gunnison County public lands," and states that they are open to "residents of Gunnison County only." The authority for this proclamation appears to be a county public health order issued pursuant to the county's emergency powers, which requires all non-residents leave the county and return to their primary residences, as well as numerous other mandates to reduce the risk of transmission of the virus.
The home rule authority of local governments is at its most expansive when exercising emergency powers; however, even at its most expansive, that authority does not allow a local government to directly control activities occurring in another jurisdiction, whether it is a neighboring county, state, or federal public lands. And while there are existing models in public land law of collaborative efforts between local governments and the federal government with regard to the management of federal public lands, the actions undertaken here are occurring in the absence of any such authorized collaborative land management. While Gunnison County may be able to take indirect actions to deter non-residents from accessing federal public lands within its boundaries, as a matter of legal authority, the federal government, not states or local governments, has authority over federal public lands: as the Supreme Court has recognized repeatedly, Congress's power under the Property Clause to manage federal public lands is "without limitation." (As an aside, whether its current actions are legally valid or not, Gunnison County may be drawing on its experience during the Spanish flu pandemic in 1918, when it sealed itself off from the outside world and successfully averted an outbreak).
In thinking about the legal authority of local governments to take actions to prevent non-local residents from accessing federal public lands, it is also worth considering how the types of "local control" efforts described above compare to the more well-known attempts at local control of federal public lands, such as the county supremacy movement and the Sagebrush Rebellion. Unlike those efforts to exert local control over federal public lands, the local government actions described here do not appear to stem from antipathy to the federal government or assertions of states' rights, but rather from an understandable concern about limiting the number of individuals who are located in the municipality who might create demands on local health care systems and first responders, or whose presence at a local gas station or grocery store on their way to the federal public lands may increase the risk of virus transmission.
It is also worth recognizing that the types of "local control" efforts associated with the county supremacy movement typically involve local attempts to permit activities on federal public lands – such as off-road vehicle access, more permissive grazing rights, or oil and gas exploration – that would benefit the local population, but which would not necessarily benefit the broader public in whose interests federal public lands are supposed to be managed. In contrast, in the local control scenarios associated with the COVID-19 crisis, assertions of local control to limit access to federal public lands arguably serve to benefit both the local community and the broader public interest (at least as measured by the public interest in reducing opportunities for virus transmission).
Yet when local governments attempt to control access federal public lands, and in particular, when they purport to have the authority to allow their own residents to continue to access federal public lands while prohibiting all other members of the public from doing so, it raises questions not only about legal authority, but also reflects long-standing tensions in public land law about what "public lands" mean and who qualifies as the "public" in this context. As scholars Michael Blumm and James Fraser have noted: "The 'public' in public land law has generally implicitly favored the local as opposed to the regional or national publics."
It is also worth recognizing that the local versus non-local tension is not limited to questions about access to federal public lands: we can see it playing out in a variety of contexts during the COVID-19 pandemic, with vacation towns telling second homeowners to stay away, island communities attempting to bar visitors from the mainland, and entire states enacting travel restrictions on anyone from out-of-state. Local control over access to federal public lands presents unique legal questions at the intersection of local government law and public land law, but it is only one of many contexts where longstanding tensions between "us" and "them" are being exposed as a result of the pandemic.
As noted at the outset, this analysis has focused on the question of legal authority of local governments to control access to federal public lands within their boundaries, not on the normative question of whether local governments should be able to prohibit access by non-local residents. Yet it is difficult to completely bifurcate the two questions. If you lived in Gunnison County or Bishop, California, or Moab, Utah, it is understandable that you might want to be able to continue to access the federal public lands that surround you, and also want legal measures put into effect to ensure non-local visitors to those federal public lands stay away.
On the other hand, the risks associated with any public access in any public spaces right now, including federal public lands, might make the question of local versus non-local access moot. As a member of the San Miguel County (Colorado) Search and Rescue team noted after the emergency rescue of a local backcountry snowboarder within a national forest in that county: "We had more than 30 people involved in that rescue, 30 people who would otherwise not be together at all. . . . What happens in two weeks when people need all those beds [occupied by accident victims, like the snowboarder] for people dying from Covid-19? . . . What happens when that person gets Covid from being in the hospital? This is an unbelievably unprecedented time. We have to think more responsibly.”
Monday, March 9, 2020
The Complicated Environmental Implications of the Supreme Court’s Cert Grant in Fish and Wildlife Service v. Sierra Club
Last week, the United States Supreme Court granted review in Fish and Wildlife Service v. Sierra Club. You might think, just based on the names of the participating parties, that a win for the Sierra Club will be a win for the environment. I’m not so sure.
The case involves the Endangered Species Act, the Freedom of Information Act, and an exchange of documents between two federal agencies. EPA was preparing a new regulation on cooling water intakes, and, as required by the Endangered Species Act, it initiated consultation with the US Fish and Wildlife Service. Formal consultations culminate in biological opinions, which explain whether a federal agency action will jeopardize the continued existence of listed species or adversely modify their critical habitat. In this consultation process, FWS initially prepared final-looking biological opinions that found jeopardy. But it described the jeopardy opinions as drafts when it emailed them to EPA, and it invited further discussion. EPA instead decided to change its proposed rule, and a reinitiated consultation on the amended proposal produced a no-jeopardy opinion.
The question now before the Court is whether the Sierra Club could use FOIA to obtain those jeopardy opinions (several other documents are also at issue, but I think the jeopardy opinions are the most important). The Sierra Club filed a FOIA request, but the Fish and Wildlife Service declined to release the opinions. It cited FOIA exemption 5, which protects from disclosure intra- or interagency communications that are pre-decisional and deliberative. The Sierra Club filed suit, asking the court to compel release of the documents, and first the district court and then the Ninth Circuit ruled in the Sierra Club’s favor (on the biological opinions but not on every requested document). According to the Ninth Circuit majority, the jeopardy opinions, though described as drafts, were finalized within the Fish and Wildlife Service, and therefore represented decisional rather than pre-decisional documents. In dissent, Judge Wallace disagreed. He would have treated the biological opinions as pre-decisional drafts.
The case presents some interesting legal questions, but those are only a peripheral focus of this post. The question I’ll consider, instead, is whether a Sierra Club loss (which I think is most likely what’s coming) would be good or bad for the environment.
It’s easy to understand why a Sierra Club loss might be bad for the environment—and, therefore, why the Sierra Club wanted to bring this case. The Sierra Club suspects the non-released documents will help show what FWS biologists really thought about the proposed rule, and that what those biologists really thought might be at odds with the text of the final biological opinions. That information could be important for public transparency. It also could help the Sierra Club prevail in a court case against the final rule. That’s because EPA and the Fish and Wildlife Service will both argue that their positions arose out of agency expertise, and therefore deserve deference, and deference is harder for a government agency to get when the agency turns out to have ignored or silenced its own scientists. Under the current administration, which seems particularly inclined to ignore or silence experts, this kind of documentation could be especially revealing (though all the events at issue in this particular case occurred during the Obama Administration). And the current administration is hardly the first to play the game of silencing experts while simultaneously asking courts to defer to expertise; nor will it be the last. More disclosure would help combat such behavior.
But there’s a different way of viewing the dispute, and it puts the United States’ position in a more positive light—even if you’re a committed environmentalist. Consider a simplified version of the events leading up to this case: EPA proposed a rule; FWS sent EPA a near-final jeopardy opinion; rather than fighting that opinion, EPA changed its rule; and FWS then sent a no-jeopardy opinion. That sounds like the way interagency negotiations ought to work: one agency says, “no, seriously, we’re really worried about the legality of your rule,” and the other agency says, “okay, we’ll try to fix it in a way that addresses your concerns,” and the first agency says, “we can live with that fix.”
While I don’t think anyone has data on how often this kind of thing happens, I suspect, based on snippets of anecdotal evidence, that it’s more common than most of us realize. Several years ago, while researching a paper on consultation processes, I found myself talking to a National Marine Fisheries Service biologist about the non-existence of jeopardy and adverse modification opinions during the first year of the Obama Administration. “Well,” he said (and I’m paraphrasing from old notes), “I’ve got five jeopardy/adverse modification opinions on my desk right now, ready to go out to other agencies.” He told me he didn’t expect any of the opinions to be finalized, but sending them was an effective way of raising the ante in interagency negotiations and getting other agencies to adjust projects in ways that made them more protective of species.
NMFS or FWS might be less willing to deploy that option if the agencies expected their shots across the bow to be discoverable under FOIA (or perhaps not; in the past, the agencies have often included draft jeopardy opinions in administrative records, which suggests sometimes they aren’t so worried about disclosure). And if that’s true, then making a draft jeopardy opinion discoverable might actually limit the use of a tool agencies sometimes deploy to protect species.
So how, you might wonder, do these scenarios balance out? Is it better for the environment, and for species, to promote transparency and to give environmental groups more leverage in litigation, or is it better to (maybe) protect a tool that sometimes gives agencies leverage in negotiations? Probably the best answer is that it’s just really hard to know.
If you do have an intuition, it may turn on whether you believe the primary engine of environmental protection comes from within the agencies or from external pressure and oversight. And if you are inclined toward the latter view, it may be worth pausing to consider how rare environmental challenges to biological opinions, and to agency decisions more generally, really are. Of the thousands of biological opinions issued every year, only a few handfuls, at most, draw litigation. The threat of litigation is more far-reaching, and litigation also tends to focus on particularly high-impact consultations, but still, the vast majority of consultations occur without any realistic likelihood of judicial review. That suggests an outcome favoring greater disclosure may matter in a fairly small number of cases, while an outcome favoring greater leverage for the Fish and Wildlife Service and the National Marine Fisheries Service might matter more often.
- Dave Owen
Thursday, January 23, 2020
This morning, the US Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead you to believe. So the goal of this post is to explain the changes the new rule actually makes for farmers and the reason those changes are more modest than you might expect.
To start, it's helpful to understand the relationship between farming and the Clean Water Act prior to this rule. Several key exemptions limited the act's effects on farmers. First, the act's most important regulatory programs affect only point sources of water pollutants, and the act specifically excludes agricultural stormwater runoff and irrigation return flows from the definition of "point sources." Not all agricultural activity is excluded from that definition; concentrated animal feeding operations, for example, can be point sources. But most agricultural activity is uncovered.
Agricultural activity can be covered, and can require permitting under Clean Water Act section 404, when it requires filling in aquatic features like streams or wetlands. The scope of those protections on filling activities is centrally at issue in today's rule. But for years, EPA and the US Army Corps of Engineers have not treated "prior converted cropland"--that is, cultivated areas that were converted to wetlands in the past--as Clean-Water-Act-covered aquatic features. That exemption has been part of Clean Water Act regulations since 1993, and it was explicit in the 2015 regulations that the Trump Administration has criticized and then repealed. Thousands of acres of aquatic features are affected by that exception. It also explains why a common image appearing in Farm Bureau advocacy materials--a flooded cornfield, usually accompanied by statements implying that the farmer faces legal liability--is misleading. Unless that cornfield was just recently undeveloped land with a natural stream, the farmer's plowing of the field was clearly legal.
Finally, it's important to realize that under a 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, isolated wetlands were not covered. An isolated wetland, under the 2015 regulations, was a wetland whose protection lacked a "significant nexus" to water quality in traditionally-navigable waterways. That case and the resulting regulations meant that many hydrologically-disconnected wetlands could be filled, even if they were not on prior converted cropland.
Consequently, even before this new rule, farmers could continue farming lands that once were streams or wetlands, even if those lands continued to flood. They also could continue to discharge large amounts of pollutants into wetlands, streams, lakes, and rivers. And they could establish new farming operations in areas where wetlands or streams presently existed if removing those wetlands or streams would not have a "significant nexus" to water quality in traditionally navigable waterways. They also could also fill streams and wetlands that did have regulatory protection; they just needed permits (which do take time and money to obtain and come with strings attached) in order to do so.
So what does the new rule actually change? It will matter primarily in two circumstances. First, it will give farmers more ability to cultivate new areas (without first obtaining permits) even if those areas contain wetlands that are not directly connected to surface waterways or if those areas contain ephemeral streams. Some of those disconnected wetlands and ephemeral streams would have received protection under the 2015 rule, and under prior rules dating back several decades; now they will not. Second, it will give agricultural activities that were traditionally regulated (for example, concentrated animal feeding operations) more ability to discharge waste directly into disconnected wetlands and ephemeral streams. Those are meaningful changes. But it is hard to see how they offer major benefits to farmers. The vast majority of farmers is likely to be completely unaffected.
So why was this such a priority for the Farm Bureau, and why will there be so much celebration? Here the post turns speculative; I am not privy to the Farm Bureau's strategic calculations. But I suspect one reason is that this issue has been very effective for rallying the organization's membership. The Farm Bureau, like other advocacy organizations, needs members, and it needs those members to pay their dues. It's easy for any advocacy organization to sustain that interest and support if it provides issues around which members can rally. And often identifying those issues is more a process of finding a compelling, appealing narrative than it is about factually and carefully identifying opportunities to advance members' interests. I suspect that's what's going on here. "Obama and EPA are coming to regulate you out of business, and our dues-supported advocacy is all that protects you" is a compelling narrative. "This change won't affect you one bit unless you're looking to expand your farm into undeveloped land that has ephemeral streams on it" is more accurate, but it's not nearly so exciting.
A second reason is forward-looking. I suspect the Farm Bureau flexed its muscles here just to make sure anyone who actually does contemplate more extensive water-quality-based regulation of farming thinks twice about taking that step.
So if you're a reporter covering this rule, you might think twice about leading with a quote from the Farm Bureau. A mining company, an oil company, or a developer might be a better place to start.
- Dave Owen
Tuesday, January 21, 2020
What just happened? Twenty-one young people have declared “We’re Not Done!” in response to a dismissal of their historic case, Juliana v. United States, which seeks a court-ordered plan to phase out fossil fuel emissions. On Jan. 17, a sharply divided panel of the Ninth Circuit Court of Appeals held that the remedy they sought was beyond the court’s capacity to order.
The panel’s three judges agreed that the federal government is pushing the nation to collapse by promoting fossil fuels. Quoting the song, “Eve of Destruction,” Judge Andrew Hurwitz (writing for the majority) explained that the federal government has long known that fossil fuels “can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse”—burying cities, unleashing life-threatening disasters, and jeopardizing crucial food and water sources. All three judges also agreed that the young plaintiffs have suffered cognizable injuries and have constitutional rights to a stable climate system.
But the majority “reluctantly” concluded that courts have no role in putting brakes on the federal government’s disastrous fossil fuel policy. Because a remedial plan would involve judicial supervision of government’s policy choices (involving transportation, energy, and public land management), they felt recourse was available only through the political branches.
The judges offered no false hope, however, that those branches would respond in time. Observing that atmospheric carbon levels have “skyrocketed to levels not seen for almost three million years,” and that the U.S. is expanding oil and gas extraction four times faster than that of any other nation – growth that “shows no signs of abating” -- Judge Hurwitz acknowledged that the problem is “approaching the point of no return.” Nevertheless, the majority concluded that the climate crisis presented a “political question” not appropriate for judicial relief.
In a blistering and scholarly dissent, Judge Josephine Staton countered: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. [T]he government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands.” Submitting that courts bear affirmative constitutional responsibility to preserve the nation from existential danger, Judge Staton saw a “perpetuity principle” embedded in the Constitution’s structure.
The case was an appeal of a decision by the federal district court of Oregon, where the 21 youth plaintiffs won a landmark victory. Judge Ann Aiken ruled that plaintiffs had a constitutional right to a “climate system capable of sustaining human life,” grounded in the due process clause of the Constitution and the venerable public trust doctrine. That decision inspired other atmospheric trust cases brought by citizens against governments around the world.
The case, originally set for trial in October 2018, was anticipated to be the “trial of the century,” the first time U.S. fossil fuel policies would be subjected to non-partisan climate science for causing extreme danger. But as the trial date approached, Trump Administration lawyers made a series of unprecedented procedural motions to thwart going to trial. They succeeded in the Ninth Circuit’s panel decision, which would have the unusual effect of blocking the trial from going forward on prudential grounds.
Why did it happen?
The posture of this appeal might partially explain the majority’s aversion to a judicial remedy. Typically, trial judges carefully craft remedies based on evidence developed in the case, sifting through possibilities to fulfill their constitutional responsibility and provide a concrete remedy, reviewable by an appeals court. But the Juliana case had no trial record (because of the government’s early appeal), so the remedy question arrived in the Ninth Circuit as an abstract hypothetical. Curiously, the majority shut the courtroom door without mentioning the many times courts have supervised remedies and ordered plans in litigation against government defendants. A notable example was Brown v. Board of Education, which required a complex judicial remedy to achieve school desegregation.
The Juliana plaintiffs also filed an emergency motion to enjoin several classes of fossil fuel projects the Trump administration was poised to deploy. Prohibitive injunctions are standard forms of relief, but the majority swept away that request in a footnote, dismissing the motion with virtually no discussion. It is possible that the majority was reading the tea leaves sent by Chief Justice John Roberts, who in October 2018 issued an extraordinary stay halting the trial pending the government’s appeal–after the Ninth Circuit refused to do so twice and former Justice Anthony Kennedy concurred.
There were some “wins” for the young plaintiffs in the Ninth Circuit decision. Government lawyers had long tried to confine the Juliana case to a narrow statutory claim, insisting plaintiffs must bring climate grievances in the form of individual challenges to agency action under the federal Administrative Procedure Act. Judge Aiken had rejected that approach, observing that statutory remedies offered little more than a game of “whack a mole” for plaintiffs, forcing them to challenge an impossible number of federal actions comprising national fossil fuel policy. All three judges agreed with Judge Aiken, rejecting a significant platform that federal attorneys had hoped to solidify. Yet, a right without a remedy is no win for the youth.
The Ninth Circuit grants full-court review (called en banc review) to only a few cases a year. A majority (16) judges of the 30-member court (now including 10 Trump appointees) would have to vote to accept the case for en banc review. The Juliana plaintiffs may well defy these slim odds. As Judge Staton observed, the urgency and danger of the climate crisis puts this case in a “category of one.” This case will also attract notice because it profoundly constrains the court from providing traditionally-used remedies (such as plans and injunctions) in institutional litigation against government defendants, ramifications that strike at the heart of the judicial role. Whether the full court will accept this doctrinal straightjacket delivered by just two colleagues is hardly clear.
If en banc review is granted, an 11-member panel (chosen by lot) could narrowly decide the remedy question, deciding that it needs a full trial record for proper appellate resolution. That would send the case back to the district court to resume the normal litigation process. Or it could affirm the dismissal. Either way, the case could ultimately end up in the Supreme Court.
Although the Juliana case is not binding on state and foreign courts, there is a growing cross-fertilization of approaches as judges across the world delineate their role in climate cases. Last month, the Supreme Court of the Netherlands squarely rejected the political question defense that the Juliana majority endorsed. In Urgenda v. The Netherlands, the high court decided that climate was judicially redressable and upheld a lower court’s order requiring government to reduce greenhouse gas emissions 25% by the end of 2020.
Several state cases now pending before courts in Oregon, Washington, Alaska, Florida and elsewhere involve remedy questions similar to Juliana. Any one of these courts could invoke traditional judicial tools to fashion a remedy structure serving as a model for Juliana and other climate cases around the world.
How does this decision affect the climate movement? The vivid descriptions of climate catastrophe in both the majority and dissenting opinions will undoubtedly amplify calls for urgent climate action. Describing “compelling evidence” of looming disaster, the judges leave any remaining doubt over whether climate change is real to drown in the ongoing sea level rise. The dissent characterized the government’s fossil fuel policy as nothing less than “willful destruction of the Nation.” Tapping spirited American patriotism through writings of George Washington, Alexander Hamilton, and Abraham Lincoln, Judge Staton described an inescapable moment of truth for the destiny of the United States, as the federal government continues to create, through surging fossil fuel development, “an existential crisis to the country’s perpetuity.”
In one crucial respect, the dissenting opinion forces a decision for all judges everywhere to choose a side of history—"When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
That question will soon be put to the full Ninth Circuit.
Tuesday, December 17, 2019
This morning E&E News reported that researchers from the Netherlands and Environmental Defense had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane.
That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0, because neither the United States as a whole nor the state of Ohio has a carbon tax (or a cap-and-trade system that would also put a price on carbon). But what if we did, and what if the tax rate approached the social cost of carbon? How much would that one leak cost Exxon (and, of course, put into the United States treasury, for the benefit of the public)?
A rough answer is very simple to calculate. The equation is: total bill = (tons leaked) x (methane CO2e factor) x (cost/ton of carbon). Methane's CO2e factor is generally set at 25, which means methane is twenty-five times more potent (over a 100-year period) than CO2. I pulled a $50/ton social cost of carbon estimate from this Center for Policy Integrity report (which is from several years ago, and which notes that this value is more likely low than high). The result is $75 million.
Compared to Exxon's overall revenues, that might seem like a rounding error. But this was just one leak, and not every well operator has Exxon's capacity to absorb a multi-million dollar loss. And if just one leak could generate that kind of bill, imagine what the threat of tax liability, perhaps in combination with heightened third-party monitoring of leaks, might do for the implementation of leak-detection systems.
- Dave Owen
Friday, November 15, 2019
An interesting case is pending in federal district court in San Francisco that attempts to force EPA to prohibit fluoridated drinking water as an “unreasonable risk” to public health under Section 6(a) of the Toxic Substances Control Act, 15 U.S.C. § 2605(a). At issue in this case is whether fluoridated drinking water actually reduces cavities and whether ingesting fluoride at the levels present in drinking water can cause adverse health consequences, including impaired brain development in fetuses and children.
Most public drinking water systems in the United States add fluoride to their water to prevent cavities. Fluoridation has been the official policy of the U.S. Public Health Service since 1951. There has always been some opposition to fluoridation. In the 1950s and 1960s, some people contended that fluoridation was a communist plot. More recently, some scientists and advocates have questioned whether fluoridation does more harm than good. Fluoride is dangerous at high levels of exposure, and many people get topical treatments of fluoride by using fluoridated toothpaste. The question posed in this case is whether exposure to fluoride at the levels in drinking water poses an unreasonable risk.
The plaintiffs, several groups of public health advocates and some individuals, contend that the scientific evidence is now clear that drinking water fluoridation can cause developmental neurotoxicity. The plaintiffs petitioned EPA seeking a rule that prohibits fluoridation. When EPA denied the petition, the plaintiffs sued.
EPA admits that exposure to fluoride can be harmful, but argues that the evidence does not show harmful effects at the low levels present in drinking water. Some studies seem to show an effect, but some don’t. Some studies that show adverse health effects do not have data about the level of exposure. Some studies have methodological flaws, such as relying on small samples and self-reporting. In short, the evidence here is muddled.
Unusually, a TSCA citizen suit is a de novo proceeding in which the plaintiff must prove by a preponderance of the evidence that the substance in question “presents an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2620(b)(4)(B)(ii). In most other citizen suit cases, the court reviews the agency’s administrative record under a deferential standard of review. One of the issues earlier in the case was whether, even if reviewed de novo, the court would limit itself to the administrative record. The district court decided that it would not, and even allowed the plaintiffs to introduce studies that were not in existence at the time EPA denied the plaintiffs’ petition to ban fluoridated drinking water. Food & Water Watch, Inc. v. United States Envtl. Prot. Agency, 302 F. Supp. 3d 1058, 1062 (N.D. Cal. 2018). This seems odd, and certainly contrary to most administrative law cases, but the statutory provision itself is unusual in providing for a “de novo proceeding,” 15 U.S.C. § 2620(b)(4)(B).
So now the case presents the district court with a large number of scientific studies and a battle of the experts interpreting those studies. In a typical administrative law case, the agency should win a battle of the experts. Here, with de novo review, the outcome is much less clear.
On technical scientific matters like those presented in this case, I tend to trust expert administrative agencies such as EPA. Moreover, here EPA has support from the American Academy of Pediatrics and the American Dental Association, both of which continue to recommend fluoridation of public water supplies even after reviewing the studies relied upon by the plaintiffs. Faced with evidence about risk that is mixed and contested, it would seem that EPA should receive some deference to its judgment. The unusual TSCA citizen suit process, however, leaves open the very real possibility that the district court will find for the plaintiffs. If that were to happen, I would think this would be a good vehicle for EPA to appeal, including the district court’s decision to review more than just the administrative record.
The district court held a hearing this week on the pending cross-motions for summary judgment. If the court denies those motions, the case is scheduled for trial in February 2020.
November 15, 2019 | Permalink
Tuesday, November 12, 2019
If you’ve practiced environmental law, you’ve probably worked with environmental consultants. Environmental controversies often involve engineering, science, and planning, and lawyers navigating these controversies routinely interact with technical specialists like engineers, scientists, and planners (sometimes those specialists also handle work lawyers might think of as legal, and do so at prices far below attorneys’ typical billing rates). Many of these technical specialists work for private environmental consulting firms. Their importance to environmental practice is hard to overstate; they really are everywhere in the field.
But academics never have written much about environmental consultants. When we think about who matters to environmental regulation, we tend to focus on legislators, agency regulators, judges, regulated businesses, and non-profit advocacy organizations. A few years ago, I went looking for articles exploring how consultants fit into this ecosystem. I didn’t find anything.
Because of that failed search, I spent a long time researching the environmental consulting industry, and the results of that work are available in just-published articles here and here. The first linked article, published in the peer-reviewed journal Regulation and Governance, addresses ways environmental consultants’ roles differ from traditional stereotypes of business. The basic story is a cautiously optimistic one: I found that consultants were working as trusted intermediaries between regulators and the regulated, and also that consultants expressed belief in and actively (but also quietly and gently) worked to support the regulatory regimes they helped implement. The second article, just published today in the Arizona Law Review, considers similar themes. It also discusses implications of consultants’ work for debates about public choice theory, privatization, social movements, and the history of environmental law.
I hope the history part of the story will be particularly interesting to environmental lawyers. There already are some wonderful accounts of environmental law’s history, but they tend to focus on legislative changes—as well as the broader societal changes that allowed environmental legislation to come about. As a consequence of this legislative focus, most environmental law history treat recent decades largely as a time of non-events; the primary story from 1990 on is a tale of Congressional deadlock and inactivity. But I think there’s much more to be said about how environmental law has continued to evolve, and some of the most interesting evolution involves agency staff, regulated businesses, and intermediate entities like consulting firms. The emergence and importance of the environmental consulting industry is a largely-untold piece of that history.
I also hope the articles shed some light on another important and puzzling environmental law question: why does environmental regulation often succeed? Success sometimes seems improbable; after all, the political challenges of enacting and implementing environmental law are painfully obvious, and the most committed advocates for environmental protection are often severely outgunned. Sometimes these mismatches produce predictable consequences, and we wind up with non-existent or anemic regulatory programs. But in a surprising number of realms, regulation has reduced environmental problems, often substantially, and even as our economy has grown. How have we pulled this off? My articles don’t purport to answer that question in anything more than a very preliminary and very partial way; I make no claim that the environmental consulting industry is the hidden key to environmental law’s successes. Instead, the tentative but still hopefully-interesting argument is that we might understand regulatory successes better if we learn more about the incentives and cultures of private actors who help put regulation into effect.
- Dave Owen
Wednesday, October 23, 2019
Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies.
For environmental justice advocates, much of the report will paint a depressing, if unsurprising, picture. In 2011, federal agencies participating in an environmental justice working group agreed to develop and periodically update environmental justice strategic plans, but some agencies have never developed plans, and others have stopped updating their plans. Ideally, those plans would include ambitious goals for progress and measurable indicators for evaluating progress toward (or past) those goals, but many agency plans include no such things. Agencies also had committed to preparing annual reports documenting their progress toward achieving environmental justice goals, and most agencies have stopped submitting those reports. In interviews and written correspondence, some agencies—including the Department of Defense, which is involved in dozens of Superfund sites—questioned whether environmental justice is even relevant to their work. These issues seem particularly concerning because neither Executive Order 12898 nor the subsequent individual-agency and interagency established demanding standards. Agencies’ commitments are modest, yet even those modest commitments are mostly unachieved.
The report also documents some EJ achievements. Perhaps most importantly, EPA has achieved one of its key environmental justice goals, which was to substantially reduce the number of people exposed to air quality that fails to attain national ambient air quality standards. That isn’t purely an environmental justice achievement, of course; its benefits cut more broadly. But air quality impairment has been a common problem for EJ communities, and steps toward ameliorating that problem are a big deal. EPA also has handed out lots of grants and developed EJScreen, a widely-used tool for mapping and assessing communities’ environmental risks. No other agency has quite this list of achievements (and one might expect more EJ work from the Environmental Protection Agency), but the report does identify steps by other agencies, as well as commitments to address some of the problems identified in the report.
All of that raises an interesting question: should we be more surprised that the federal-agency-EJ glass is mostly empty or that it is even somewhat full? After all, while the report depicts rather spotty efforts to address environmental justice concerns, one might have anticipated much less. Environmental justice is ultimately about using environmental regulation, which often generates well-funded and well-connected resistance, to protect people who are particularly politically disempowered. That can be an uphill climb under any circumstances, and the climb is particularly steep at this present moment, when our nation is governed by an administration that is openly opposed to environmental protection and openly disdainful of disempowered communities. Perhaps, then, it is a wonder that federal agencies are still doing anything for environmental justice or that Executive Order 12898 hasn’t been repealed.
The report also hints at some interesting questions about how EJ might be turned from activists’ aspiration into institutional reality. As the report explains (and it is also part of this ongoing process), an executive order devoid of substantive mandates has become part of agency practice through largely-voluntary agency commitments—some of which were spurred by oversight from the GAO, a body whose limited leverage derives from its ability to provide information to Congress and non-binding recommendations to agencies. In exercising that oversight, the GAO has asked agencies to define their own goals, establish benchmarks toward achieving those goals, and then measure and document their progress. To a business school professor, that might sound perfectly sensible, but to many environmental lawyers, it may all sound quite soft. Where are the statutes and regulations and enforcement actions that define environmental law, and in which we tend to place our faith? But the (somewhat limited) empirical evidence I have seen doesn’t paint a black-and-white picture favoring either the hard regulatory mechanisms favored by many lawyers or the softer ones that are more fashionable in the business-academic world. It could be that the GAO’s vision—specifically, that management strategy is key to environmental justice—reflects some wisdom, or, at least, the absence of better options.
- Dave Owen
Thursday, October 17, 2019
I just ran across Professor Nathasha Affolder’s (University of British Columbia) recent article, Contagious Environmental Lawmaking. This thought-provoking piece critically examines how environmental law scholarship characterizes the international diffusion of legal concepts such as environmental impact analysis. A common method in scholarship, Affolder observes, is to note examples of the apparent proliferation of an idea across multiple legal systems and then to treat this proliferation as evidence of the merit of the idea. Lots of legal systems have something called environmental impact analysis, the reasoning goes, so that must mean that environmental impact analysis is a beneficial legal tool. The transnational migration of a term is thus assumed to demonstrate the replication of law, and replication is assumed to demonstrate the merit of a law.
Affolder makes a convincing case that this approach can be naïve and even biased because it strips the process of legal diffusion of its contingencies and its historical and cultural context. Just because a term such as environmental impact analysis appears in different legal systems does not mean that it is equivalent in each system. And even if an idea gets adopted elsewhere, its spread is not necessarily simply because it was a good idea. The international lawmaking market is not a neutral meritocracy of ideas. The dominant and recurring theme of Affolder’s article is, “It’s a lot more complicated than that,” and she urges environmental law scholars to take fuller account of those complications in their work. To encapsulate her critical approach, Affolder proposes the term contagious lawmaking, which she contends “creates space for dissecting the multiplicity of processes at work, of directions of travel, and of levels at which the ‘influence’ of legal ideas can be detected or imagined.”
To help illuminate some of the complications she sees as overlooked in conventional comparative environmental law scholarship, Affolder identifies five methodological traps to be avoided:
- Scholars embed normative claims in putatively descriptive work in ways that disguise policy agendas. Thus, a scholar may refer to a list of “best practices” as if what counts as “best” is self-evident and as if practices that are successful in one context should automatically be replicated in others.
- Scholars ignore the historical development of environmental law ideas, assuming that ideas develop and spread simply because they are good. Ideas may spread for a variety of reasons, not all necessarily based solely on universal merit.
- Scholars project universality onto their objects of study, ignoring important differences among similar-sounding concepts. As an example, Affolder notes how a concept such as “rights of nature” can only be understood in the context of a particular people’s understanding of, and relationship to, nature.
- Scholars ignore the people who influence the spread of environmental law concepts. Individuals take actions that carry legal concepts across cultures and legal systems. Understanding why and how those actions occurred adds important context to the migration of legal concepts.
- Scholars pay insufficient attention to how funding affects the movement of law. People and organizations with money can push out ideas, and the ability of an idea to take hold depends on having resources to implement it.
Each of Affolder’s “traps” is a point well taken, but I think they also can be overstated and taken too far. Sometimes stripping away context is what generates insights. Treating every development as thoroughly embedded in its own unique historical and institutional context can obscure patterns and commonalities that may exist across developments.
Affolder’s critiques remind me of a cluster of articles written a few years ago by scholars such as Jody Freeman, Amy Wildermuth, Lincoln Davies, Joe Tomain, and I about the relationship between energy law and environmental law. My 2015 article in that cluster, Energy-Environment Policy Alignments, argued that FERC and EPA had begun developing policies that create beneficial alignments between energy law and environmental law and these alignments offer a promising model for better managing the energy-environment relationship. More broadly, I claimed, policy alignments provide a potentially useful model for managing relationships among other overlapping fields as well. Around the same time, Jody Freeman published an article entitled The Uncomfortable Convergence of Energy and Environmental Law. Her article took what she called a more “tempered” view of energy-environment alignments, noting that the institutional contexts in which agencies such as FERC operate limit their ability and willingness to adopt environmental policy objectives that are outside of their traditional focus and legal mandate. It seems to me that Freeman took an approach closer to what Affolder recommends. Freeman’s criticism of my article and others was well-placed; she made a convincing case that the realistic prospects of energy-environmental alignments are best understood in light of the institutions in which such alignments would have to occur. But adding this helpful context also doesn’t negate the point that scholars such as Wildermuth, Davies, Tomain and I have made in our scholarship about the importance of opportunities to align the sometimes divergent fields of energy and environmental law.
Circling back to Affolder’s article, my take-away is that there is an important place for scholarship that contextualizes legal ideas in the circumstances in which they arise, take root, and spread. But not all scholarship has to take a context-centered approach. Scholarship attempts to explain things, and in doing so it often employs theoretical and analytical frameworks that necessarily simplify the world. Simplification and focus generate insights. To translate theory into practice, however, scholarship also should examine the experience of legal ideas as they have operated in the real world. Affolder’s article provides a strong argument in favor of such scholarship, and valuable guidance in thinking about how to approach it (and how not to approach it).
October 17, 2019 | Permalink
Wednesday, October 2, 2019
Call for Proposals
Deadline: Friday, October 18, 2019
The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan. Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019. Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice. Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication. Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019. Proposals and questions should be directed to Bridget Underhill, Symposium Director, at firstname.lastname@example.org.
October 2, 2019 | Permalink
Monday, September 23, 2019
Last Thursday morning, the Environmental Protection Agency and the National Highway Transportation Safety Administration revoked California’s authority to regulate mobile sources’ greenhouse gas emissions. Todd's previous post here provides a concise summary of the legal issues, and other bloggers have already done a nice job explaining the revocation rule’s flaws and the reasons why many of the Administration’s public claims about the new rule are dishonest. I won’t rehash those points here.
My interest is in a particular motivation for the new rule. The Trump Administration seems to have been outraged that California and major carmakers tried to negotiate an agreement resolving their modest differences. And the outrage at that deal seems to go well beyond general frustration with California’s opposition to the Trump Administration climate policies. The Administration appears to have accelerated the schedule of the revocation and made it a separate decision partly because of California’s negotiations; the preamble to the final rule goes on at length about those negotiations; Trump and his political appointees have unleashed an unusually high number of anti-California taunts and threats in recent days; and, perhaps most tellingly, the administration has launched an antitrust investigation into the automakers who tried to compromise with California. In short, the fact that California and automakers were negotiating a deal seems to have given the administration a fit.
This hostility to deals between regulators and the regulated isn’t a new thing. A few weeks earlier EPA announced a policy against the use of “supplemental environmental projects” in environmental settlements. A SEP is an environmentally beneficial project carried out by an entity that had violated some environmental law, and the money spent on the project partially reduces the financial penalty the violator otherwise would have paid. Usually both sides see SEPs as good deals: rather than just pay a fine, the money improves the environment and the community where the violation occurred (and if either side doesn’t like the deal, it can reject it). So SEPs ought to appeal to an administration ostensibly interested in dealmaking and regulatory flexibility. But the Trump Administration has prohibited using SEPs to settle enforcement actions against government entities and has suggested it might try to eliminate them entirely.
This hostility to negotiated deals also shows up in the administration’s persistent attacks on compensatory mitigation, which I’ve written about here. Compensatory mitigation allows people to damage the environment in ways that would be otherwise unallowable so long as they provide extra environmental restoration or protection someplace else. In other words, it allows flexibility for negotiated deals. At its best (it is not always at its best), the deals can be beneficial for both regulated entities and the public: regulated activities can proceed in desirable locations while high-value environmental resources are protected or restored. But the Trump Administration has been attacking compensatory mitigation for several years now, sometimes with enthusiastic support from congressional Republicans.
All of this might seem a little odd. If you like regulatory flexibility, and you like deals, what’s not to like about a deal that provides regulatory flexibility? Perhaps the answer is that you really dislike the regulations that made the deal necessary. That partially explains why the Trump Administration is trying to revoke California’s authority over greenhouse gases, though it doesn’t explain why the act of negotiating seems to have drawn so much extra ire. And it also doesn’t explain why the administration is going after SEPs or compensatory mitigation. In either case, the assault on negotiation just reduces a regulated entity’s options. Why do that?
One answer, explored in an interesting article by law professor Lee Anne Fennell, is that if you dislike government regulators, perhaps anything that takes flexibility away from those regulators is appealing, even if it undercuts flexibility for regulated entities. The goal, in other words, might just be to hurt government however you can, regardless of the collateral consequences for regulated entities. Fennell offers this theory as a partial explanation for conservative affection for cases like Nollan v. California Coastal Commission and Dolan v. City of Tigard. I think she’s on to something, but conservative activists aren’t just creatures of emotion. There are strategic calculations at work here as well.
A second possible reason, which I explored in the essay on compensatory mitigation, is a sense government regulators will be less inclined to implement laws at all if they don’t think they can implement them in a flexible way. Regulators are generally well aware that enforcement is controversial, and they therefore may be somewhat reluctant to embark on a regulatory initiative if they know it will culminate in a financial penalty—particularly if that penalty will be imposed on a powerful or sympathetic actor like a prominent business or local government. The possibility of a SEP or a compensatory mitigation deal therefore might make implementing the law more feasible. And if you don’t want implementing the law to be feasible, taking that option away might make some strategic sense; it’s just a way to ensure that there’s less enforcement overall.
Then there’s a third possibility, which I suspect explains some of the vehemence the administration has displayed against the California-automaker deal: the outrage is largely about maintaining a united industry front against regulators. Consider, for a moment, the incentives of antiregulatory activists and politicians, a category that clearly includes the Trump Administration. In many circumstances, they have made alliances with and get their money from businesses that are desperately opposed to regulation. The coal industry is the most obvious example (for-profit colleges might be another); its viability depends on society’s willingness to tolerate massive externalization of costs, and government regulation is the means through which such tolerance usually comes to an end. That means these industries badly need alliances with politicians and are willing to spend serious money to maintain those alliances, and the Republican Party has happily soaked up that money and political support.
But there just aren’t enough desperately anti-regulatory businesses to dominate politics on their own. Instead, those businesses and their political clients need alliances with a more mainstream business establishment, and also with public-sector entities that have mixed feelings about oversight from other parts of government. Those alliances exist and have been powerful for years, but they also are fragile; many businesses, like the automakers, have realized that a world with stronger environmental regulations is world in which they can thrive (and some realize it might be the only world in which they can thrive). Consequently, every settlement with regulators, and every negotiated deal that accommodates both environmental and business goals, is a threat to a fragile alliances upon which hyper-antiregulatory businesses and the Trump Administration both depend. Without a more generalized business-environment conflict, and without a widespread perception that business and regulation are implacably at odds, their tenuous coalition falls apart.
Of course, that’s not the only dynamic in play. Clearly Trump is lashing out at California partly because of his perpetually wounded pride. But this administration has long pursued a strategy of ruthless disciplining allies that seem to waver in their support, and it also clearly perceives value in conflict. As political strategy, that might all be quite smart. But for people who want a well-governed society in which regulated entities thrive, it should be deeply concerning.
- Dave Owen
September 23, 2019 | Permalink
Friday, September 20, 2019
Some Observations on EPA and NHTSA’s Rule Revoking California’s Authority to Regulate Greenhouse Gas Emissions from Vehicles
As the media has widely reported, yesterday EPA and the National Highway Traffic Safety Administration (NHTSA) revoked California’s authority to regulate greenhouse gas emissions from vehicles. California, other states, and environmental groups will file suit to challenge the new rules. The agencies’ action raises lots of issues that will be litigated in the court challenges. Here a few of my observations after reading the new rules.
The NHTSA rule relates to the agency’s authority under the Energy Policy and Conservation Act of 1975 (EPCA) to set fuel economy standards for vehicles. EPCA gives NHTSA authority to regulate fuel economy in motor vehicles. Section 509 of EPCA also preempts some state regulation; it provides that states “may not adopt or enforce a law or regulation related to fuel economy standards.” 49 U.S.C. § 32919(a). The question NHTSA addressed in yesterday’s rule is whether a state emission standard that does not directly regulate fuel economy standards, but that nevertheless affects fuel economy standards, is “related to fuel economy standards” and thus preempted. Everyone agrees that California’s greenhouse gas emission standards affect fuel economy. NHTSA’s rule announced yesterday clarifies the agency’s position that EPCA preempts state vehicle emission standards that “directly or substantially affect” fuel economy. If NHTSA’s interpretation broad interpretation is correct, then it would seem that the agency is correct that EPCA preempts California’s greenhouse gas emission standards. But it looks to me that the agency’s interpretation goes farther than even it would like and therefore must be wrong. Here’s why.
California has long regulated pollutant emissions from vehicles under special authority granted to it under the Clean Air Act. More on that below. It would thus be very difficult for NHTSA to argue that California lacks authority to regulate vehicle emissions of traditional pollutants, known under the Clean Air Act as criteria air pollutants. Rather, the agency wants to limit the reach of its new rule to preempt only standards that regulate greenhouse gas emissions, which California has only started doing in the 2000s. But vehicle emission standards for traditional pollutants substantially affect fuel economy. So, NHTSA’s theory that EPCA preempts any state emission standard that substantially affects fuel economy would seem to wipe out all of California’s emission standards, not just its greenhouse gas emission standards. Even if this Administration might like that, it is an untenable legal position, because the Clean Air Act explicitly gives California authority to adopt vehicle emission standards. In other words, NHTSA’s rule seems incompatible with the Clean Air Act, which is a pretty good indication that it goes too far.
As to the EPA side of yesterday’s rule, I think the issues are murkier. Clean Air Act Section 209 preempts state vehicle emission standards but also directs EPA to waive preemption for California for any state emission standards that are at least as stringent as federal standards, as long as the state standards are needed “to meet compelling and extraordinary conditions” and are consistent with federal emission standards. 42 U.S.C. § 7543. As EPA readily admits, it has traditionally granted California’s requests for waivers under Section 209 after only cursory review. In yesterday’s rule, EPA decided that California’s greenhouse gas emission standards for vehicles are not needed “to meet compelling and extraordinary conditions” in California because climate change is a global problem, and emissions from California vehicles do not affect California particularly. EPA argues that greenhouse gas emission standards are in this respect fundamentally different than emission standards for criteria air pollutants. This seems like a key underlying issue in this dispute: Should greenhouse gases be treated like other air pollutants under the Act (in which case California probably should authority to regulate them through emission standards), or are they different in ways that matter to the application of the statute? The Supreme Court’s decision in Massachusetts v. EPA, which essentially concluded that greenhouse gases are air pollutants under the Clean Air Act, supports the former position, while its later decision in UARG v. EPA, which held that not all Clean Air Act regulatory programs should apply to greenhouse gases, provides some support for the latter.
A court also will have to decide whether the dire effects of climate change in California make the need for state emission standards “compelling and extraordinary,” or whether the effects must be California-specific and different from other states to be “compelling and extraordinary.” One weakness in EPA’s position is its repeated insistence in yesterday’s rule that Congress’s sole motivation for giving California authority to set emission standards under Clean Air Act Section 209 was California’s special air pollution problems. This supports EPA’s current position, because climate change is not a California-specific air pollution problem. But the text of Section 209 makes clear, and the legislative history supports, that Congress also was motivated to give California special authority to regulate because the state already had shown leadership and initiative in tackling air pollution issues, before Congress enacted the Clean Air Act. This seems to support allowing California to play a similar role with respect to climate change, and it’s a factor that EPA does not acknowledge in its rule.
Both agencies, but especially EPA, also will have to grapple with the fact that they are attempting to revoke regulatory authority that EPA previously granted to California, as opposed to denying that authority when California first requested it. Some have argued that EPA lacks authority under the Clean Air Act to revoke a Section 209 waiver it has granted. I am skeptical of that argument, because agencies generally have authority to reconsider past decisions and to correct past mistakes. If EPA were to make a blatant error in granting a Section 209 waiver, I would think it would—and should—have authority to reconsider and revoke the waiver. But I do think it should matter that EPA greenlighted the California standards. Exactly how this should play into the court’s analysis is unclear. Arguably it should increase the burden of the agencies to justify their position. It also may affect the way that the court treats statutory ambiguity. Under the Chevron doctrine, Courts often give deference to an agency’s interpretation of an ambiguous statutory provision. Application of the Chevron doctrine here will already be in dispute, because of the agencies’ shifting position. But, if one accepts that Clean Air Act Section 209 is ambiguous as to the scope of California’s authority to adopt emission standards, there seems to be a decent argument that EPA acted arbitrarily and capriciously simply by changing its interpretation after already approving California’s waiver under a different interpretation. In other words, the agency may have acted arbitrarily and capriciously by revoking a prior decision based on a change from one otherwise reasonable statutory interpretation to another.
September 20, 2019 | Permalink
Monday, September 9, 2019
One of the joys of working as an academic is that part of our job is just to read and learn from the works of others, even if it is not directly relevant to our own research. Having recently shed significant administrative responsibilities, I have had more time to read some of the interesting scholarship that is being released. One study that caught my eye over the summer was a working paper by Sam Krumholz, a PhD student at UC San Diego, entitled The Effectiveness and Incidence of Litigation as a Policy Instrument: The Case of the New Source Review Settlements. The study immediately interested me for a couple of reasons. First, I enjoy reading research about the law by non-legal academics, who tend to bring a different perspective to their analysis of legal topics. Second, Krumholz’s study investigates the effects of enforcement actions that were underway during the time I was working as an environmental lawyer at the Justice Department, although I did not work on the cases Krumholz analyzes. One of the debates at the Department was whether the enforcement cases being brought against coal-fired power plants for alleged violations of the New Source Review requirements under the Clean Air Act were accomplishing results that justified the considerable investment of resources by EPA and DOJ to litigate the cases. Krumholz’s study offers important evidence about the positive impacts of the litigation.
Krumholz’s study evaluates the impacts of EPA’s New Source Review (NSR) Initiative, a series of enforcement actions taken in the early 2000s against certain coal-fired power plants, alleging that the plants had violated the Clean Air Act by undertaking major modifications without going through the New Source Review permitting process that would have led to more stringent emissions limitations. As Krumholz notes, the NSR Initiative ultimately encompassed more than one-third of coal-fired power plants in the United States and required compliance measures estimated to cost more than $25 billion.
Krumholz’s objective was to use empirical analysis to determine the effects of the consent decrees that settled enforcement actions brought under the Initiative. Krumholz found the following:
- Consent decrees were associated with significant emissions reductions (-20%) of nitrogen oxides and sulfur dioxide from the power plants.
- Ambient pollution levels near the power plants fell significantly for sulfur dioxide (-33%) and ozone (-4%). The smaller decrease for ozone probably reflects the fact that power plants are just some of the many contributors to ozone pollution.
- Cardiovascular mortality in counties near the power plants fell significantly (-1.5%).
- For power plants owned by investor-owned utilities, almost all of the cost of the settlements was passed on to ratepayers in the form of higher rates. Investor-owned utilities are subject to cost-of-service regulation, which allows them to recoup their costs in the rates they charge for their power. Due to data limitations, Krumholz was unable to analyze the impact on rates from consent decrees involving power plants in areas with competitive wholesale electricity markets. Standard economic theory, however, would reason that power plants in competitive markets would not be able to pass on as much of their compliance costs in the form of higher rates.
Most legal scholars are familiar with regulatory impact analyses that prospectively project the costs and benefits of new regulatory proposals and regulations. Less common are economic studies that retrospectively analyze the costs and benefits of regulations. Krumholz’s study is an example of a third category, of which I have not seen many in environmental law: empirical studies of the impacts of strategies to enforce environmental standards.
One of my favorite pieces of environmental law scholarship has long been Dan Farber’s 1999 Taking Slippage Seriously article in the Harvard Environmental Law Review, which argues that environmental law should pay more attention to slippage—the gap between regulatory standards and the actual conduct of regulated parties. Krumholz’s study provides an empirical basis for understanding the impacts of enforcement actions that reduce slippage, and therefore helps us understand both the impacts of slippage and the material benefits of enforcement actions. It would be great to see more empirical studies of the effects of environmental enforcement and litigation.
September 9, 2019 | Permalink