Environmental Law Prof Blog

Baby Hudson on the Tragedy of the Commons and Herder Rationality

Following on Jonathan Zasloff's Legal Planet post on Molly Bang's "Tragedy of the Commons" book for children, I thought I would announce that my first child, Campbell Lee Hudson, was born recently.  Campbell has already begun reading up on Garrett Hardin, Elinor Ostrom, Robert Keohane, Oran Young, and others and has a message he would like to convey (with a little help from daddy's poor photo-editing skills).

- Blake Hudson

 
 

Climate forecasting: "A pinch of probability is worth a pound of perhaps"

Yesterday, Blake raised the issue of how weather events are used to argue for or against climate change. This gives me an opportunity to share some insight from Dr. David Pierce, a climate scientist from Scripps Institution of Oceanography who graciously gave his time to guest lecture in my climate change law class last week. I'm sure he dumbed things down for us, and I'm not sure I will accurately represent his explanation here -- but I'll do my best.

Dr. Pierce very usefully framed his presentation in terms of climate change myths, calling out myths and showing how the science refutes them. One of the myths he called out was that “Someplace or other got colder … global warming can’t be true!” In response, he explained that forecasting a change in climate (i.e. a rise in global temperature, a rise in rainfall, a loss of glaciers) involves predicting a probability distribution. Take rainfall, as shown in the first graphic. If the prediction is that the amount of rainfall will remain unchanged in the future, then that implicitly means that about a third of places observed will experience dryer than normal years, a third will experience normal years, and a third will experience wetter than normal years. This happens because of natural variability; weather is a chaotic system. If only natural variability is acting, you'd expect about the same number of places to experience wet winters as dry. The fact that any one place experiences increased dryness or wetness does not contradict the forecast that rainfall will remain the same overall. The wetter and dryer places are part of the predicted distribution and are completely consistent with the forecast.

Now consider a climate forecast that predicts less rainfall, as in La Nina years for San Diego. In this second graphic, the probability distribution is shifted to the left, indicating that more years than before will be drier.  But, importantly, the climate forecast still contains within it the prediction that a certain (small) number of years will be wetter. It is the same with climate change.  The forecast that the average global temperatures will increase means that more places will experience higher temperatures.  However, there will still be places where temperatures decrease, and that is part of the climate forecast. Those observations do not refute the forecast, they are consistent with it, as long as you observe many more warming places than cooling places.

The final graphic is a chart of temperature trends over the last 50 years, calculated in 5 degree latitude by 5 degree longitude boxes over the Earth.  It shows that most places have warmed, but some have cooled.  And that is exactly what climate scientists would have predicted. In fact, you can see this shift in the distribution in record high and low temperatures as well. In the 1950s, the U.S. experienced about the same number of daily record high and low temperatures. But by the 2000s, there were twice as many record highs as record lows. We will still get record low temperatures decades from now, but there will be many record highs for each record low.

 -- “A pinch of probability is worth a pound of perhaps” -James Thurber (American Writer, 1894-1961)

 

 

-Lesley McAllister (Note: Thanks to Dr. Pierce for lecturing to my class and sharing these graphics. Any errors of explanation and interpretation are mine.)

Hurricanes/Heat = Global Warming, but Cold/Snow = Lunacy? How to Handle Isolated Weather Events When Discussing Climate Change?

As this is an issue that I have struggled with for some time now, I write this blog post to ask for advice, guidance, and the perspective of others - so please chime in with comments. 

It seems to be the bane of existence for those familiar with climate change science - the person who posts on Facebook or Twitter, or who boldly asserts in the classroom or office, "it was a record low in X city, Y state today - suuuurrreeee global warming is real. And there's been record snowfall to boot!" These types of misunderstandings of climate change science have resulted in a shift from "global warming" terminology to "global weirding" or "climate change" - a recognition that though the earth's overall temperature will increase over time, climatic conditions will be quite variable in any given location.   

Stephen Colbert has parodied this thought process quite well in the following video:

The Colbert Report
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When people make comments that cold weather days must disprove global warming, Colbert quips, "Folks, that is simple observational research: whatever just happened is the only thing that is happening . . . [Currently] it is dark outside. Now based on this latest data, we can only assume that the sun has been destroyed. The world has plunged into total darkness. Soon all our crops will die and it's only a matter of time before the mole people emerge from the center of the earth to enslave us in forever night....thanks a lot Al Gore." 

Even though I agree with the silliness of such arguments, I cannot help but wonder what our responsibility is as educators, scientists, and other professionals in the field when it comes to isolated weather events that appear to support "our" position.  Over the course of this summer I have seen numerous posts on Twitter and various news articles and blog posts from both environmental groups and professionals asserting what essentially sounds a lot like "See! Record heat! Climate change is real!" Also, I saw even more posts, and some articles, during recent Hurricane Irene that seemed to highlight this one hurricane event as proof of climate change. Don't get me wrong - I certainly trust the statistics on warming trends and increased hurricane frequency and intensity over the last few decades. There is little doubt that those trends reinforce and form part of the foundation of climate change science.  But my question is more about framing the issue. It is really hard for me to criticize someone for arguing that cold weather events disprove global warming, and then turn around and say that a single hurricane or a hot month of July support my "position." This is despite the fact that some may say "well sure, of course it is ok to do just that, because we are right. The data is on our side. So of course it is ok to point to these events as proof." That may very well be true, but something about that approach just doesn't feel right. I think it may be one of those arguments we should consider dropping so as not to allow the delivery of the message to disrupt or confuse the message itself. 

In the end, I believe that if those pointing out the reality of climate change do not want to sound exactly like those they criticize, it might be in our best interest to not use hyperbolic sounding arguments based upon isolated weather events. And trust me, this is hard for me - I like hyperbole.  But maybe we should stick to the whole story, and not just parts of it? What are your thoughts?

- Blake Hudson

In Case You Missed It - The Week of August 21-27

* On Tuesday, an earthquake of a 5.8 magnitude hit Virginia, causing the North Anna nuclear power plant reactor to temporarily shut down (Wall Street Journal).  Twelve other nuclear plants "felt" the quake but did not shut down  (NY Times).

* The State Department "released the Final Environmental Impact Statement for the Keystone XL Pipeline Project," which, if built, will carry oil from Canada's oil sands through the United States.

* The United States Geological Survey published a substantially lower estimate of technically recoverable natural gas in the Marcellus Shale (underlying New York, Pennsylvania, West Virginia, and other Appalachian states) than the Energy Information Administration's previously-published estimate of 410 trillion cubic feet.  The USGS believes that the shale has about 84 trillion cubic feet of technically recoverable reserves (NY Times).

* Hurricane Irene hit the North Carolina coast (ABC News), and New York City ordered about 370,000 residents to evacuate parts of the city (NY Times). 

* Japan's Prime Minister Naoto Kan, whom the public had criticized for his response to the Fukushima Daiichi nuclear plant disaster, stepped down (LA Times).

Must Read Energy Books

The most recent edition of the ABA Journal inspired me.  Its cover story is the feature "30 Lawyers Pick 30 Books Every Lawyer Should Read."

This got me thinking.  What are the must-read energy, or energy law and policy, books out there?

Looking around a little, I found one person's answer.  Alexis Madrigal, senior editor at The Atlantic and author of Powering the Dream: The History and Promise of Green Technology, came up with these "13 Energy Books You Need to Read":

1. Consuming Power by David Nye
2. Petrolia by Brian Black
3. The Prize by Daniel Yergin
4. Energy Policy in America Since 1945 by Richard Vietor
5. Technology and Transformation in the American Electric Utility Industry by Richard Hirsh
6. The Bulldozer in the Countryside by Adam Rome
7. Soft Energy Paths by Amory Lovins
8. Energy at the Crossroads by Vaclav Smil
9. Hubbert’s Peak by Ken Deffeyes
10. A Golden Thread by Ken Butti and John Perlin
11. Sorry Out of Gas: Architecture’s Response to the 1973 Oil Crisis by the Canadian Centre for Architecture
12. Wind Energy Comes of Age by Paul Gipe
13. The Discovery of Global Warming by Spencer Weart

Madrigal's is a fascinating, insightful list.  I'm still wondering: what's my list of must-read energy and energy law/policy books?

More to the point, what's yours?

-Lincoln Davies

Study on Warfare and Changing Climate

Following on my recent post, a new study in Nature finds that warfare may increase in times of changing climate.  According to Monagbay.com, "researchers found that El Niño conditions, which generally cuts rainfall and raises temperatures in the tropics, may have played a factor in one-fifth of the world's total conflicts during the past 50 years. El Niño conditions occur every 3-7 years. While the study did not examine global climate change in conjunction with conflict, the study links a warmer world to a more conflict-prone one, as least in the tropics."

- Blake Hudson

Call for Presentations - Washington & Lee Law Journal of Energy, Climate, and the Environment Symposium 2012: "Reclaiming Environmental Federalism"

Please see the attached call for presentations: Download Call for presentations JECE Symposium 2012.  In addition, here is the website.  A brief blurb:

"The Washington and Lee Journal of Energy, Climate, and the Environment (JECE) is proud to issue this call for presentations at our 2012 symposium.  The symposium will take place on Friday, February 17, 2012 at the Washington and Lee University School of Law in Lexington, Virginia, and will feature legal scholars and practitioners discussing state-based energy and environmental regulation ("environmental federalism").  If you have recently written on this topic and would like to be a part of the symposium, please contact the journal at [email protected].  If you have not yet published, please e-mail us your manuscript or abstract, and we will consider it for the symposium, as well as for publication in an upcoming issue of the journal."

- Blake Hudson

The Obama Administration's Regulatory Reform Initiative

Last January, the Obama Administration announced a major regulatory review initiative.  In its executive order, the administration directed federal agencies, among other things, to “consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”  The announcement caused some consternation among progressives, including many environmental law professors.   Many wondered why, at a time when regulatory gaps are a huge problem (see, e.g., climate change or regulation of toxic substances), the president was echoing some of the anti-regulatory rhetoric more commonly associated with his Republican critics.

This week, the White House announced the initial results of that effort.  Cass Sunstein’s White House Blog post describing the effort is available here, and more detailed reports from individual agencies are available here.  Press coverage has not been extensive; apparently, real-world regulatory reform does not grab the attention of newspaper editors.  However, the press reports do tell us, to no one’s great surprise, that Eric Cantor and the Chamber of Commerce are not impressed.

The agency reports contain quite a lot of information, and a comprehensive summary is well beyond the scope of a blog post.  But a quick review of the environmental agencies’ reports supports a few preliminary observations:

- From reading the AP’s story, one could easily form the impression that this effort doesn’t have significant environmental implications.  In fact, the reports describe dozens of initiatives potentially affecting environmental protection.  EPA alone highlights thirty-five different initiatives ostensibly taken in response to this Administrative directive.  USDA, DOI, Commerce, DOE, and the CEQ also all describe initiatives with potentially significant environmental consequences.  I have not reviewed the reports of other agencies—DOT, for example—whose work has significant environmental implications, but there may be environmentally-relevant initiatives described there as well.

- Discerning which agency initiatives were triggered by Obama’s order and which would have happened anyway isn’t easy.  Most of the agency reports purport to distinguish efforts previously underway from new efforts.  But, as EPA’s report explicitly points out, regulatory review already was a major part of agencies’ agendas even before Obama spoke up.  It’s not hard to imagine that many agencies, in an effort to seem responsive to the Administration’s call and to make the Administration’s initiative look consequential, credited Obama’s order for actions they would have taken anyway.

- With most agencies, the proposed actions can be roughly divided into two categories: first, fairly specific actions that agencies are proposing to take in the relatively short term; and second, broader regulatory initiatives with still-highly-uncertain results.  The former category includes actions like transitioning from paper to electronic reporting of chemical health and safety data; the latter would include the ongoing effort to rewrite the joint NMFS/FWS regulations for implementing section 7 of the ESA. 

Within the former category, I did not see anything that jumped out as a major regulatory retrenchment.  Instead, many of the efforts appeared to involve streamlining reporting processes, usually in sensible ways, and some (for example, reducing NEPA reporting requirements when USDA approves the removal of logging roads, or protecting renewable energy projects on BLM lands from competing mining claims) seem likely to provide environmental benefits.  Of course, many of the proposed initiatives touch on areas of environmental law in which I’m no expert, and the agencies of course are trying to put their initiatives in the best possible light, so don’t take my word for it.  Nevertheless, in the initial phase, this looks a lot more like sensible regulatory adjustment than ill-advised regulatory gutting.

For the long-term actions, the story may get a little more complicated.  Many of the longer-term initiatives involve potentially major rule changes.  The section 7 effort is just one example; changing the section 7 regulations could have big consequences, positive or negative, for endangered species protection.   That agencies are contemplating such rulemaking processes shouldn’t really be surprising, however.  Every administration undertakes major regulatory initiatives, with or without a Presidential impetus like Obama’s January order, and with every administration the outcomes of those rulemaking processes have important environmental implications.  The reports are just a reminder that the Obama Administration has been, and will continue to be, no different.

- Agencies are showing a lot of interest in NEPA.  Not surprisingly, it’s the primary focus of the CEQ, and DOI, USDA, and Commerce all describe efforts to look at their NEPA compliance processes. 

 - What’s most prominently (and happily, in my view) missing from these reports is evidence that the Administration is backing off on climate regulation.  In this report, at least, EPA appears to be sticking to its guns.  Other agencies, if they address the subject at all, are identifying measures to streamline approvals for renewable energy projects.  So while legislative efforts to address climate change seem dormant for the foreseeable future, EPA’s embattled administrative efforts will continue.

- Dave Owen

New Jersey, RGGI, and Republicans

A month ago I wrote about overallocation in the Regional Greenhouse Gas Intiative (RGGI).  I mentioned that in addition to its overallocation problem, RGGI has had threats of withdrawals from New Hampshire and New Jersey. Last Friday, it became very likely that Governor Christie will indeed pull New Jersey out at the end of 2011.  He vetoed a bill (S. 2946) that the New Jersey legislature passed to try to block him from doing so. Christie's stated reasons for leaving RGGI are that it is ineffective in reducing greenhouse gas emissions and that it is raising the price of electricity (but see a good critique of the latter reason here).   

Perhaps there is a silver lining: Christie accompanied his veto with a statement acknowledging that climate change is real and that human activity “plays a role” in it.  He thus joins the thin ranks of Republicans with a national profile who are crazy enough to trust scientists, in the words of presidental candidate Jon Huntsman. 

But I must wonder whether Republicans like Christie and Huntsman are standing firmly on the safe side of the climate abyss (see below) or trying to stand in the middle?  Now that they acknowledge the problem of climate change, what policies do they actually support to address it? 

- Lesley McAllister

 

That Darn Treehugging Military - a Thorn in the Climate Change Denier's Side

The military looks good in green. We've known that for quite some time and a trip to your local Army/Navy store will demonstrate as much.  As committed as Greenpeace or WWF may be to the natural environment, the military is the one branch of society that is committed enough to actually dress in a way that blends with nature. Whether military camouflage takes the appearance of a desert, an ocean, or a rain-forest, the military adjusts.

But this poorly executed comedic metaphorical imagery may not be too far from the truth. While Fox News may talk a great deal about the military, it appears the military has not been watching Fox News and it's reporting on climate change of late. The Pentagon has called climate change a "destabilizing geopolitical force" and that climate change "may act as an accelerant of instability or conflict." Thirty-three U.S. Generals and Admirals have asserted that "Climate Change is Threatening America's Security." A Lieutenant Colonel at the U.S. Army War College has written a report titled "Water: U.S. Strategic Response to Conflicts Over a Finite Resource." The U.S. Navy has expressed concern over the "risk and uncertainty" created by climate change and has even engaged in "war games" in order to "assess its ability to respond to possible climate change-related conflicts around the world." These games "involved scientists, water specialists, climatologists, aid workers, intelligence officials, business analysts and military officers" - now that is a collection of individuals not welcome on the set of Rush Limbaugh....they might just say something with which he disagrees.

Now the military is training its guns on energy efficiency and is moving away from oil toward renewable forms of energy.  As evidenced in this story, the U.S. Army recently determined that one out of eight Army casualties in Iraq resulted from the protection of fuel convoys. Thus a move toward renewable energy and energy efficiency aligns with military goals - protecting the lives of soldiers. We have already seen this in the context of our reliance on foreign oil - our individual reductions at home and a move toward renewables could dramatically reduce our implication in conflict in the Middle East and elsewhere. Yet for some reason, segments of society typically associated with hawkishness and military strength seem to be the least interested in reducing their carbon footprint - a contradiction of ideology to say the least.

Nonetheless, "the military is quickly becoming a leading buyer of cutting-edge renewable energy technology." Perhaps the greatest potential for this surge in investment is moving technologies to a place of commercial viability, as has happened in the past with GPS and the Internet. From solar and wind powered military bases to robots that run on wave energy, the military is leading the way.

One analyst recently summed it up best: "At a time when many conservative lawmakers are strongly opposing renewable energy and denying the science of climate change, it’s interesting that the Department of Defense – the nation’s largest energy user, representing 80% of federal sector energy consumption – remains fully committed to reducing energy consumption and developing renewable energy technologies."

I think if I really want to practice what I preach I should adopt the approach of the military and begin wearing Realtree camouflage to class (though, being from the woods of Alabama this would not be so unusual for me). In all seriousness, we could all learn from the military on matters of the environment. The military has not always been a bastion of environmental awareness, and a myriad of environmental problems are caused by and remain a part of military life. But unless the military is truly engaged in a vast left-wing conspiracy (I am pretty sure I will be the only person on the entire internet to type the phrase "military is truly engaged in a vast left-wing conspiracy..."), then I think we all should listen to what they have been saying recently about the environment - doves and hawks alike.

- Blake Hudson

Offshore Oil and Gas For Sale

On Friday, the Department of the Interior and the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) announced that on December 14, 2011, in New Orleans, BOEMRE will auction off oil and gas leases covering about 20.6 million acres ("3,900 unleased blocks") in the Gulf of Mexico.  BOEMRE will increase the minimum bid amount from $37.50 to $100 per acre for leases at depths of 1,312 feet and greater; the minimum bid price at "shallower depths" will remain at $25 per acre, and the leases will cover depths ranging from "16 to more than 10,975 feet."  (BP drilled its ill-fated Macondo well at an approximate 5,000-foot depth, for perspective.) 

This announcement follows a BOEMRE decision earlier in August to conditionally approve Shell Offshore, Inc.'s Revised Exploration Plan for Beaufort Sea drilling near Alaska.  With its conditional approval on August 4, BOEMRE also released its Environmental Assessment and Finding of No Significant Impact for the project.

-Hannah Wiseman

In Case You Missed It - The Week of August 14-20

* EPA opted not to tighten its 1971 carbon monoxide standards (The Hill).  The decision was heavily criticized by the American Lung Association, among others.

* It appears that some of the nation's larger law firms are anticipating increasing their hiring this upcoming summer (ABA).  

* A recent study predicts that by year 2030 urban areas will expand by 590,000 square miles, and that this expansion is likely to occur in areas that currently important for their biodiversity (Science Daily).

* The Obama administration announced that it plans to hold its first oil and gas lease sale in the Gulf since the Deepwater Horizon spill (LA Times).

* After weeks of Republican presidential candidates attacking climate change science, Governor/Ambassador Huntsman criticized candidates who are "anti-science" for potentially alienating "a whole lot of people who would otherwise allow us to win the election in 2012." (ABC News -- hat tip Political Wire).

Nuclear in the News

In the months since the disaster at Fukushima Daiichi, it seems that nuclear energy increasingly has been in the news.  This week was no exception.  If anything, it was a particularly busy few days for news on nuclear energy.  A few highlights:

• A U.S. envoy to Japan severely criticized that nation's government for their response to the Fukushima disaster.  According to an AP story, Kevin Maher, head of the envoy and the former diplomat to Japan, said:  "“There was nobody in charge.  Nobody in the Japanese political system was willing to say, ‘I’m going to take responsibility and make decisions.’”


• Meanwhile, Japanese citizens are still dealing with the radioactive aftermath of Fukushima.


• In New York, residents are split over Governor Cuomo's plan to shutter Entergy's Indian Point nuclear generating station.  According to a recent poll, 49 percent of those living near the plant oppose shutdown, while 40 percent favor it.


• The Tennessee Valley Authority unanimously approved a proposal to complete construction of the Bellefonte nuclear power plant in Hollywood, Alabama.  Prior construction ended in the late 1980s.


• At the same time, Exelon's CEO John Rowe spoke out on the difficulty of building new nuclear plants in the U.S.  "The country needs nuclear power if it is going to tackle the problem of climate change," he said.  "But we must keep our hopes for new generation harnessed to facts.  Nuclear needs to be looked at in the Age of Reason and not the Age of Faith.  It is a business and not a religion."


• And the NRC approved a license for a uranium milling operation in Wyoming.

-Lincoln Davies

I wish I could have taken that class...

Keith Hirokawa (Albany) just posted a short article describing an innovative land use course he teaches.  He structures his course around a hypothetical permitting process for a real parcel of land (which the students actually visit), and asks students to assume the roles of attorneys representing the multiple parties involved in the land use dispute.  It sounds like a great class, and his approach could be imitated, with some adjustment, in other locations or for environmental law courses.  The article is a quick read, and I recommend checking it out.

The article also contains a more general discussion of some of the benefits of problem-based learning.  To the list of advantages Keith provides, I'd add one more.  I've found that problems--particularly problems in which students assume adversarial roles--are wonderful mechanisms for getting students to closely read statutes and regulations.  That's an essential skill for environmental lawyers, but it isn't easy to develop through traditional caselaw-based teaching.  But when students know they'll be required to present an argument to their classmates, and that those classmates will be challenging their arguments, they seem far more eager to act like real lawyers and pore over the details of statutory and regulatory language.

- Dave Owen

Political Risks Associated with Bashing Climate Change Science

Less than a week into Rick Perry's campaign and his positions on climate change have become an important part of the political narrative of his campaign and, perhaps even more so, those opposing his campaign.

The New York Times reports that Republican candidate continue to use EPA and climate change to make political points.  This storyline has been featured on this blog by Lesley McAllister yesterday and me and by Dan Farber on Legal Planet.

However, the tables began to turn this past week as Rick Perry began to be haunted by his positions on climate change science.  Perhaps the most effective attempt at this comes from Washington Post columnist Alexandra Petri in her article, "Rick Perry, global warming and those durn scientists."  The major point of her article is that Rick Perry's position puts his gut feeling against science, scientists, and data.  This line of argument, of course, is meant to paint Rick Perry as a cheap Geoge W. Bush knock off.  Other have been less subtle in making that point.  For example, the Atlantic pressed the question, “Is America Ready for 'George W. Bush on Steroids?'"

While the argument has not yet been made to its fullest, it will be assuming that a Republican candidate who questioned the science of climate change becomes the party's nominee.  Ultimately, candidates will be much better positioned for the general election if they focus on what we ought to do given what we know from science.  It seems that defining ones position on climate change by attacking climate change science leads to a place where the candidate looks unreasonable--like one who thinks of scientists (as Petri put it), as people who "tend not to reemerge until they’ve made a nuclear bomb or electrocuted a boxed cat or come up with special relativity." 

If Perry becomes the nominee and has to face up to the full political fallout associated with his position, for the first time he will come to understand that failing to adapt to the reality of climate change comes at a cost--for him that cost might be the election.

-- Brigham Daniels

Michele Bachmann on Climate Change

Following on Brigham's post a few days ago about Republican candidates' positions on pollution, if you haven’t heard Rep. Michele Bachmann’s (R-MN) 2009 speech on the House floor about carbon dioxide, you really must.  Appended to it is a response by Rep. Earl Blumenauer (D-OR).  Somehow, I doubt her understanding has changed much since then.

  

Partial transcript:  Carbon dioxide, Mister Speaker, is a natural byproduct of nature. Carbon dioxide is natural. It occurs in Earth. It is a part of the regular lifecycle of Earth. In fact, life on planet Earth can’t even exist without carbon dioxide. So necessary is it to human life, to animal life, to plant life, to the oceans, to the vegetation that’s on the Earth, to the, to the fowl that — that flies in the air, we need to have carbon dioxide as part of the fundamental lifecycle of Earth...There isn’t one such study because carbon dioxide is not a harmful gas, it is a harmless gas. Carbon dioxide is natural. It is not harmful. It is a part of Earth’s life cycle.  And yet we’re being told that we have to reduce this natural substance and reduce the American standard of living to create an arbitrary reduction in something that is naturally occurring in the earth.

- Lesley McAllister

 

Jonathan Rosenbloom on State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

Professor Jonathan Rosenbloom, Drake Law School, has posted New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations on SSRN.  Rosenbloom provides a novel analysis of how local governments may overcome certain problems created by state preemption laws - namely when those laws prevent local governments from reaching outside jurisdictional boundaries to address issues that do not match those boundaries. As Rosenbloom points out, "[t]he juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face." 

Rosenbloom focuses on municipal collaborations as one mechanism for addressing these challenges and analyzes such collaborations within Ostrom's theoretical framework delineating "design principles" that best facilitate collective action among a group of individuals seeking to address commons problems. He applies these design principles to municipal governments that face shared commons problems and that may wish to collaborate, regardless of their geographic location. Rosenbloom notes:

"Local characteristics that go beyond geographical location yield many opportunities to collaborate on CPR challenges. Multi-jurisdictional challenges involving CPRs include water quality, waste water disposal, food supply, food security, climate change, energy, air quality, deforestation, wildlife habitat, shrinking tax base, early childhood education, traffic congestion, vacant real estate, and parks and recreation space. Although separated by miles and jurisdictional boundaries, cities experience these challenges in similar ways often based on common demographic, geographic, economic, and environmental characteristics that influence their experience with CPRs . . . ."

After applying Ostrom's design principles, Rosenbloom concludes that "Ostrom’s research offers a method for motivating local government action that operates within the confines of state preemption laws and avoids a tragedy of the commons." 

It is easy to stereotype local governments as individual "rational herders" on the commons, exercising self-interest at the expense of the wider region. Rosenbloom demonstrates that this label is often unwarranted, as structural and institutional factors often prohibit local governments from extracting themselves from commons dilemmas - such as the institution of state preemption laws. Rosenbloom provides innovative insights into ways local governments can extract themselves from such dilemmas and drop the label of "rational herder." You can see the abstract to Rosenbloom's article below. 

- Blake Hudson

ABSTRACT:

State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on place-based, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article then proposes that non-place based municipal collaborations allow a reconceptualization of existing local government authority — rather than a drastic reallocation of authority from higher levels to the local level. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments. 

The objective of the article is not to suggest one strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.

In Case You Missed It - The Week of August 8-14

* Changes in federal funding for disasters were part of the debt deal (NY Times). 

* Electric wind turbine technology is developing and improving at a fast pace (NY Times).

* After years of low water levels and in a year of historic droughts in parts of the United States, the Colorado River is on the rise (LA Times Environment Blog).

* For those interested in reading the congressional tea leaves for the future of what has been dubbed the Super Committee charged with reducing the deficit, here are some insights into committees' (decidely skeptical) views on climate change (Grist).

* Presidential candidate Michele Bachmann, who has been one of the toughest critics of the EPA (and particularly its impact on the economy), faced questions this week due to her past efforts to secure EPA funding to stimulate her own state's economy (Huffington Post).  

* The EPA continues to face political challenges to its regulatory authority (LA Times, Dan Farber at Legal Planet and Brigham Daniels on this blog).

*ABA’s Standing Committee on Environmental Law was dissolved this week and made into a Task Force (Lesley McAllister on this blog).

 

DOE Advisory Board Recommends Shale Gas Production Changes

This week, the Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board released a ninety-day report that proposes ways to "reduce the environmental impact and improve the safety of shale gas production"--a process that includes the use of hydraulic fracturing.  The report recommends that companies drilling and fracturing for natural gas in shale formations reduce the use of diesel fuel in fracturing (and to do this by, among other measures, substituting electric or natural gas engines for diesel engines); reduce methane and other air emissions; disclose the "flow and composition of water at every stage of the shale gas production process" and take other measures to protect water quality; and disclose "all chemicals in fracturing fluids" to the public.  One of the most important recommendations is for improved communication among state and federal regulators.  States have core regulatory responsibilities over drilling and fracturing, and some of their regulations differ substantially when compared across states.  In some cases, these differences may be justified by geographic and climatic variation, but a closer assessment of the reasons behind these differences could help to achieve the stated goals of the report.

-Hannah Wiseman

Should We Require Scrubbers for the Republican Presidential Candidates' Positions on Pollution and EPA?

During last night’s Republican Debate, Jon Huntsman called for EPA’s “regulatory reign of terror” to be brought to an end.  And, I had to remind myself that this was coming from the moderate in the debate.  To be clear, he is just the latest of the Republican candidates to condemn EPA and not the most extreme.

Of course in the last debate, Michele Bachmann called for EPA to be abolished and labeled it the “job-killing organization of America.”  More recently, she also pledged that if elected, she would have EPA’s “doors locked and lights turned off.”  Seemingly, she has tried to make this one of her major issues, but others are not so willing to keep this position to herself.

Newt Gingrich has called EPa a“fundamental threat to freedom in this country” and accused it of being “anti-American jobs, anti-American business, anti-state government, anti-local control.”

In his first major speech, in which he laid out his domestic agenda, Tim Pawlenty has said, “We need less EPA monitoring of our economy. And more monitoring of EPA’s affects on our freedom.”

Ron Paul has said that we do not need EPA and has alleged that it uses an “intrusive approach and it favors those who have political connections.”  He has also said, however, that abolishing it is not one of his higher priorities, though he is not opposed to it.

Herman Cain has promised if elected that he would “create a panel of oil and gas officials to instruct the agency in overhauling its permitting program” and says that eliminating its permitting programs “would be an option.”

While to my knowledge Mitt Romney has avoided such fiery language/positions, he has criticized EPA for attempting to regulate greenhouse gas emissions.  In the same interaction, however, he did support other aspects of EPA’s mission.

Soon-to-announce candidate, Rick Perry has said that he prays for the President every day and also prays that “his EPA back down these regulations that are causing businesses to hesitate to spend money.”  So it seems, once he is in the race, we will be hearing more from him on this topic.

Perhaps, these positions are more about trying to win votes from those who make their voices heard in state caucuses and primaries or those who donate to candidates.  Perhaps, this is just cheap talk. 

Granted, some candidates have taken more extreme positions than others.  However, it turns out that one of these candidates becomes President, let’s hope that he or she is just blowing smoke about EPA and the regulation of pollution.  If not, we should prepare ourselves for air filled with smoke and other pollutants if these candidates get their way.

-- Brigham Daniels