Environmental Law Prof Blog

RealClimate � Climate Science

The best science link I can suggest regarding climate change is RealClimate � Climate Science.  It is not easy to read if you don't immerse yourself in climate science, but it provides a much better rounded view than the pronouncements of any one climate scientist.  The discussion on storms can be found here.  Climate change and storms

The Science of Global Warming - Hurricanes in the South Atlantic

Science reported a study by Pezza and  Simmonds that indicates the South Atlantic experienced its first hurricane in March 2004.  The hurricane, which hit Brazil, was caused by unusual metereological conditions associated with large scale atmospheric circulation patterns.  These patterns are being influenced by climate change so perhaps this hurricane is the first of many.  Science review of study published in Geophys. Res. Lett.   

The Science of Global Warming - You can't teach an old tree to absorb more co2

Science published a study by Korner showing that growth in mature deciduous trees does not improve their ability to absorb CO2.   So tree growth caused by elevated CO2 levels will not increase the ability of forests to serve as carbon sinks.  Link: Carbon Flux and Growth in Mature Deciduous Forest Trees Exposed to Elevated CO2.

GAO Criticizes Implementation of Great Lakes Initiative

GAO reports that the Great Lakes Initiative has had limited impact on water quality for several reasons including its focus on point sources and implementation problems.GAO Great Lakes Initiative Report

Still in a hole

The European satellite Envisat shows that the ozone hole over antarctica is currently 4 million square miles -- about the size of Europe.  It still has 2 - 3 weeks of seasonal expansion.  For a great graphic, see the Envisat photo.  Link: BBC NEWS - Major ozone loss over Antarctic.

Lujan II Redux: Standing: Linking US Aid and Global Warming

There's more than one way to skin the standing cat.  The Northern District of Califonia refused to dismiss a NEPA suit against the Overseas Private Investment Corporation and the Export-Import Bank of the United States for funding fossil fuel power projects without analyzing global warming effects.  Link: Planet Ark : Court Allows Suit Linking US Aid and Global Warming.  See the decision at plaintiffs' site.  FOE Decision

Flaming Democrats All?

Some of you may have been amazed by the data reported by John McGinnis of Northwestern University about political preferences of law school faculty.  See the NY Times report If the Law Is an Ass, the Law Professor Is a Donkey.  Based on the NY Times coverage, 70-90% of us are flaming Democrats.  That might typify environmental law faculty, but....  Consider Al Leiter's response.  Another meaningless study

Clearcutting National Park management policy

The battle between the Interior political management and career National Park Service officials is raging.  See LA Times article. Controversy Over Plans for Changes in U.S. Parks. 

A draft NPS management policy circulating within Interior radically affects NPS policies in favor of snowmobiles, cell towers, grazing, and other public uses. Links to draft NPS management policy 

The NY Times editorial today discusses just a few policy adjustments.  NY Times editorial   My review of the draft NPS management policy indicates that it would:

• change the mission of National Parks from preservation to conservation,
• expand the purposes of the park
• stress public use of parks over protection of park resources,
• change the impairment standard to only prohibit "irreversibly" harm to the integrity of park resources,
• remove the policy that requires NPS to err on the side of resource protection when in cases of doubt as to resource impacts
• only require restoration of natural functions and process "whenever feasible, reasonable, and practicable" and inserts similar language throughout the policy
• preclude designation of parks as World Heritage sites or Biosphere Reserves if such a designation would impair public enjoyment of the park
• control park access to protect endangered species only as "a last resort"
• minimize the assertion of water rights for the park and allow long term leasing of water rights unless the leasing would impair park resources
• provide less stringent requirements to protect natural light, sound, and smells
• will no longer minimize the use of motorized equipment and modes of transportation to protect natural ambient sound conditions
• allow off road vehicle use on roads and other routes unless it is necessary for public safety or to prevent impairment
• more readily allow expansion of Park roads and non-NPS roads in parks

Retired career NPS personnel have produced a revealing and strongly analysis of the policy. NPS career employee analysis.  Arnold and Porter has opined that it is illegal. A & P opinion.    And Interior is backpedalling from the firestorm over the draft as quickly as possible.

Stay tuned -- now I wonder: do clearcuts "permanently and irreversibly" affect national park resources ????

Welcome to our community!!!

Adell Amos joins the U. of Oregon faculty and will serve as Director of the Environmental and Natural
Resources Law (ENR) Program.  Adell is teaching water resources and wildlife law.  Adell graduated from Oregon, clerked on the Ninth Circuit Court of Appeals for Chief Judge Procter Hug, Jr, and practiced at Interior, representing USFWS and the National Park Service on water resource issues, including water rights litigation, and the full spectrum of state and federal environmental laws. (John Bonine announcement) 

Indian Treaty Water Rights - tribes win one skirmish

In the most recent ABA Water Resources Committee newsletter, Judith Royster of Tulsa contributed a nice analysis of the 9th Circuit's en banc decision in Skokomish Indian Tribe v. United States, 410 F.3d 506 (2005).  The 9th Circuit eliminated the panel's discussion of reserved indian water rights, which had applied the primary/secondary use analysis of New Mexico in the federal reserved water rights context to indian reserved water rights and had indicated that fishing was not a primary purpose of the reservation.  See Skokomish panel decision, 401 F.3d 979 (9th Cir. 2005).  However, otherwise, the panel's decision remained intact.  The panel's decision had been a loss for tribes on treaty, state law, and § 1983 claims against defendant municipalities and on Federal Power Act claims against the US.  The tribe's damage claim based on its treaty rights was transferred to the U.S. Court of Federal Claims by the panel, which held that it did not arise under the Federal Tort Claims Act, but instead under the Tucker Act and the Indian Tucker Act.  http://www.abanet.org/environ/committees/waterresources/newsletter/aug05/waterres0805.pdf

Alternative Visions of Protecting Biodiversity

Donlan and colleagues advocate an alternative to pre-Columbian biodiversity as a goal --pleistocene biodiversity [roughly 13000 years ago].  Re-wilding North America.  My first thought is that this is a plot to embarrass conservation biologists, but what do you think?

Wildlife and the Web

The NY Times reported on web trafficking of endangered species today.  This strikes me as having the potential for excellent paper topics on the gaps in the law and ways to plug them.

Link: For Wildlife, the Web Is a Treacherous Place - New York Times.

Transplanting Panthers Works!

Science reported on a peer reviewed study indicating the attempt to reinvigorate the inbred Florida Panther population by transplanting panthers from Texas succeeded.  The study is somewhat controversial because it relies on data that has been reported by other scientists, but not published. Link: WILDLIFE BIOLOGY: 'Genetic Rescue' Helps Panthers but Puts Researchers on the Spot -- Stokstad 309 (5738): 1162 -- Science.

Biggest Ideas

John Bonine of Oregon -- who always has great questions -- offered a list of biggest ideas in Environmental Law over the summer on ENVLAWPROFESSORS and solicited additions.  So far, here's the first draft of our collective wisdom:

1. attorneys fees - (environmental plaintiff friendly rules)
2. biodiversity preservation
3. citizen suits
4. cost/benefit analysis
5. cost/benefit balancing as pollution standard setting approach (as well as  health/environmental quality and technology based models)
6. ecologically sustainable development
7. economic incentives approaches
8. ecosystem services
9. ecosystem management (indicator species or other)
10. environmental impact assessment
11. free market environmentalism (not the same as 4 or 6)
12. information strategies (e.g. TRI)
13. injunctions - relaxed standard
14. mitigation/compensation
15. polluter pays principle
16. precautionary principle
17. preservation of wild and lonely places
18. public participation/citizen democracy
19. public trust doctrine
20. risk assessment (similar to 4, but different)
21. standing - relaxed standard for judicial review of administrative action
22. strict or absolute liability
23. technology forcing approaches to regulation

Feel free to add others!

Evolutionary Economics: Perverse Incentives - Incentives Can Reduce Good Behavior

Just when economists had us convinced....

Excerpted Abstract:    Rewards or punishments (whether material or image-related) create doubt about the true motive for which good deeds are performed and this "overjustification effect" can induce a partial or even net crowding out of prosocial behavior by extrinsic incentives. In some settings, disclosing one’s generosity may backfire. Finally, we analyze the choice by public and private sponsors of incentive levels, their degree of confidentiality and the publicity given to agents’ behavior. Sponsor competition is shown to potentially reduce social welfare.

Link: Incentives and Prosocial Behavior.

Frivilous SLAPP suit costs firm $ 267,000

On Monday, August 15, a judge sanctioned lawyers who filed a RICO suit against a community activist and three Forest Service employees opposing a luxury condominium project.  The lawyers were fined $267,000 for filing the frivilous SLAPP suit on behalf of the developer.Link: Los Angeles Times: Law Firm Sanctioned for Forest Service Suit.

GAO: EPA Has Failed to Protect Environment from Failed Businesses

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GAO has issued a report faulting EPA, among other things, for failing to require businesses to provide financial assurances that they are able to clean up environmental contamination caused by their use of hazardous substances.  GAO claims that EPA had a duty to issue financial assurance regulations under CERCLA § 108(b).
GAO Report Highlights
Full GAO Report

Reducing the Stink?

Animal feeding operations have argued that the Clean Air Act did not apply, that there are no sound methodologies for measuring their emissions, and that there are no cost effective technologies for reducing emission.  However, over 2000 dairy, feedlot, and similar livestock operations have now signed EPAs air quality compliance agreement for animal feeding operations.  The operations pay a relatively small penalty and emission monitoring study fee while making their operations available for monitoring so that standardized emissions monitoring methodologies can be developed and agreeing to install LAER/BACT if they are major sources.  Link: Animal Feeding Operations Air Quality Compliance Agreement . 

Environmental Article Hit Parade

Link: SSRN Top Downloads.

1     249 hits      Chevron Step Zero
                        Cass R. Sunstein, U. Chicago
2     53 hits       Sustainable Development and
                        Private Global Governance
                        Douglas A. Kysar, Cornell
3     50 hits        The Scope of Regulatory Bargaining
                        Jim Rossi, Florida State
4     47 hits          The Accidental Environmentalist: Judge Posner on                         Catastrophic Thinking
                         Lisa Heinzerling, Georgetown
5     45 hits          Political Institutions, Judicial Review, and Private                              Property: A Comparative Institutional Analysis
                        Daniel H. Cole, Indiana
6     40 hits        Governance of International Institutions: A Review                             of the North American Commission for Environmental                         Cooperation's Citizen Submissions
                        David L. Markell, Florida State
7     36 hits          Operational versus Rhetorical Sustainability:                                     Conflicting Goals, Values and Functions
                        David Barnhizer, Cleveland-Marshall
8     35 hits          Mustering the Missing Voices: A Collaborative Model                         for Fostering Equality, Community Involvement and                             Adaptive Planning in Land Use Decisions II                                        Alejandro E. Camacho, Notre Dame
9     33 hits          Mustering the Missing Voices I
                         Alejandro E. Camacho, Notre Dame
10     25 hits        Lucas's Unlikely Legacy: The Rise of Background                             Principles As Categorical Takings Defenses
                        Michael C. Blumm, Lucus Ritchie, Lewis and Clark

Highlights from Recent Economic Papers

***Stern, A Three Layer Atmosphere Ocean Model of Global Climate Change

Using sophisticated multicointegration econometric modelling, Stern suggests that climate changes from anthropogenic forces occur slowly but continue warming over a long time.  For example, the level of warming from anthropogenic forces to date is 3.25K, only 1/2 of which will occur in the first 100 years.

***Amundsen, Baldursson, Mortensen, Price Volatility and Banking in Green Certificate Markets

Banking of green certificates for renewable power improves the market by reducing average price, decreasing market volatility, and creating speculation that smoothes the market.  Banking of Green Certificates

For a full list with abstracts, see New Economics Papers: nepenv_20050725_13_papers

For a full list with abstracts, Download nepenv_20050725_13_papers.html