Wednesday, November 30, 2011

Road Salt and the Law

As winter arrives, and snow begins falling across much of the country, a small army of workers will spread across America’s roads, parking lots, and walkways, dumping hundreds of thousands of tons of salt.  That salt will help keep people safe, but at a steep cost.  Salt stresses roadside vegetation, increases roadkills, and contaminates aquifers and surface waterways.  Beyond environmental impacts, salt also damages vehicles, and all of those tons of salt cost a lot of money.

P5080010In Maine, these concerns recently spurred the creation of a group called the salt management roundtable.  The group is a loosely-defined set of municipal stormwater managers, public works directors, environmental consultants, regulators, and academics, all interested in finding ways to address the environmental and non-environmental consequences of salt.  We’ve met several times, with a mix of structured discussions and presentations, and through those meetings I’ve all learned some interesting things.  Among the highlights:

- However you measure it, salt application is a big and growing issue, even if it’s not an issue we usually hear much about.  The amount of salt applied is truly enormous (see here).  It all stays in the environment, and the impacts are extensive.  Here in Maine, researchers have found that salt concentrations in aquifers across much of the state are steadily rising, with average concentrations eventually likely to exceed EPA water quality standards.  That’s a huge problem anywhere that relies on groundwater as a drinking water source.  The surface water impacts may be similarly pervasive.  A UMaine Ph.D. student doing statewide water sampling recently found that impaired urban streams in Maine nearly always have elevated salt concentrations.  That doesn’t mean that chloride is the cause of impairment—there are plenty of impaired urban streams in areas with less salt use—but it is at least consistent with a fear, often expressed by urban stormwater managers, that restoring urban watersheds will not be possible unless salt impacts are somehow addressed.

- There isn’t an easy answer.  Simply abandoning salt would be incompatible with current public expectations for mobility and safety.  Changing those expectations is theoretically possible but likely to be rather difficult.  And while less toxic alternative de-icers do exist, they’re expensive.  We have opportunities to reduce use, and technologies may change.  But eliminating use is a very far-fetched possibility.

- Some of most intense salt users are private landowners.  Municipalities apply the most salt because they are responsible for most of the paved area.  But because of the financial incentives and economies of scale associated with high-volume use, municipalities can invest in sophisticated technology designed to allow strategic applications.  The municipal salt trucks you see on the road probably have computer systems that help operators continually adjust to road and weather conditions.  Private landowners, by contrast, have much less incentive to use those systems, and therefore often use much more salt per unit of area.  If there are low-hanging fruit to be plucked, these private landowners are a particularly good opportunity. 

- Law affects salt application, and not just because water quality regulation may limit salt use.  Contracts also appear to make a big difference in the amount of salt applied.  A contractor paid a flat sum for salt application has very different incentives from one paid for materials used.  And tort law is important.  Both municipal and private landowners have repeatedly expressed fears that if they use less salt, they’ll find themselves on the wrong side of a jury verdict.  A recent white paper, which one of my students did most of the work of preparing, concludes that those fears, though not baseless, are probably a little overstated.  But the stormwater managers I talk to still think those fears are real impediments to reductions in salt use.

Where will the group’s work go from here?  I’m not sure.  So far, we’ve learned from each other, gained a clearer sense of the challenge, and identified a few opportunities.  But finding effective solutions is going to take much more work. 

All of that leads to a pitch.  I know this blog has some student readers, and some of you may be using this blog to try to identify topics for law journal comments or independent writing projects.  If you’re looking to write about an important but relatively understudied environmental issue, the law of salt may provide some potentially good option.

- Dave Owen

November 30, 2011 | Permalink | TrackBack (0)

Tuesday, November 29, 2011

Are you a Climate Change Technological Optimist?

A technological optimist thinks that climate change will be solved through technology development and that human societies will continue to thrive and grow wealthier in the course of a transformation away from fossil fuels. Humans will innovate their way to a brighter future as technologies emerge to support new electric power systems, agricultural systems, modes of transportation, and urban design. The technological optimist believes, in short, that technology will save us.

A technological pessimist emphasizes the risks and costs of technological change.  In the pessimist’s view, climate change is a complex social problem for which there will be no easy technological fix.  Rather, climate change will lead to significant societal disruption, and an appropriate response is to return to a simpler, less technologically-dependent existence.  For the technological pessimist, yesterday’s technological solution is today’s social problem.

I think it is fair to say that the media tends to endorse a view of technological optimism.  And I feel somewhat hopeful when I read stories about skyscrapers that inhale carbon dioxide, super-efficient rotating solar panels, and "smart" windows that switch to dark mode.  Yet I also perceive truth in technologically pessimistic proclamations like the People's Agreement adopted at the April 2010 World People’s Conference on Climate Change and the Rights of Mother Earth in Cochabomba.  

Where do you fit?  You may see yourself in both, but does one or the other view predominate for you? At times during my climate change class this past semester, I found myself feeling like quite the pessimist in comparison with my students.  

- Lesley McAllister

November 29, 2011 | Permalink | Comments (0) | TrackBack (0)

The Urgency of Now--Why We Need to Stop Fighting about Climate Change and Get Serious about Energy Transition

The United Nations Framework Convention Convention on Climate Change has begun its annual conference of the parties in Durban.  From the start, the news is depressing, and as Lesley McAlister noted in her blog, has a bit of a deja vu quality, and not in a good way.  The Chief Economist of the International Energy Agency, Fatih Birol, indicated that we're on track for 6 degrees of warming by 2100 if we don't change our energy use patterns.  Meanwhile, Canada, which is failing to meet its Kyoto Protocol commitments, has announced it won't sign on for another commitment period.  While there are many nuanced negotations going on regarding many important issues, which small groups of people fully understand, the progress on some of these topics since last year's Cancun negotations does not address the fundamental problem: we are nowhere any kind of big picture solution to this problem.  This is why the soon-to-be-released casebook I'm writing with Lesley McAlister ends with major climate change and geoengineering as it's two primary scenarios, and asks our students to try to get us to an alternative future.

I started a talk a week ago saying that I wish I were a climate skeptic and having a good friend say that she doesn't understand how we can keep going working on this incredibly depressing issue.  It's hard to know what to do when consensus science says that we're creating a catastrophic problem and when there's just not political will to act fast enough.  The reason I have projects on both suburbs and geoengineering emerges from the schizophrenia that this moment brings.  I'm trying to come up with creative ways to impact the big picture as top down approaches fail (known by academics as pluralist or polycentric governance models) while trying to make sure we have legal mechanisms thought through as we begin to approach geoengineering more seriously.  And for the record, I have very grave doubts that, even with our best scientists thinking it through, geoengineering (technological efforts to reverse warming effects or get carbon out of the system) is likely to go well.  And all this is under the Obama Administration--many leading Republican candidates want to eliminate the meager progress this country has made and one of them may win if our economy doesn't improve more soon.

So, assuming there are plenty of people out there who are not radical climate skeptics but simply feel overwhelmed by this issue, what can you personally do to be constructive as people from around the world try to be constructive in Durban? First, we need to push as fast as we can in our local communities--and many of us live in small cities where we can make a difference (the central cities in the Twin Cities, for example, represent just a quarter of the metro's population)--to get our governments and people to start at least making the easy choices.  There's still lots of low hanging fruit.  By transitioning to cleaner energy through energy efficiency measures and increasing renewables, cities can often save themselves a lot of money.  And green energy is not necessarily more expensive, by the way.  One of the most hopeful moments for me this semester was when my students and I went to visit the regional transmission organization here and heard a system operator say that they try to put as much wind onto the system as possible, not because its environmentally better, but because it's the cheapest source of energy in the system. 

Second, we need to try to change the discourse and we can all make a difference in this.  It's time to stop wasting enormous amounts of energy fighting, and work together.  As is not uncommon in times of great economic distress, we have two populist movements in this country, the Tea Party and Occupy Wall Street.  Although very different politically, they both represent deep dissatisfaction with the status quo in this country.  Meanwhile, we have an often vitriolic political discourse, especially as we march towards another presidential election, that leads to people wasting enormous time and energy fighting rather than working together constructively.  We can each individually change this by reaching across the aisle and partnering.  Energy transition, which really needs to happen, is not a Democratic or a Republican issue.  Many of the suburban sustainability efforts in the Twin Cities metro that I've looked at are taking place in communities that lean Republican.  Whatever you think of climate change, helping your community transition to cheaper, cleaner energy makes sense.  These measures are not enough as our representatives sit in Durban likely failing to address climate change adequately, but they're something we can do right now, where we live, and make a difference.

Hari Osofsky

Cross-posted on Intlawgrrls and SALTLaw Blog.

November 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 27, 2011

In Case You Missed It: Week of November 20-26

* A new article in Nature (reported on by the New York Times) provides evidence that the current rate of Arctic ice melting is at its most extreme in more than a millennium. 

* Carl Pope announced he would step down from the helm of the Sierra Club (reported in many places, but particularly nice write ups found in NY Times Green Blog and SF Chronicle).

* Dan Farber posted a timely analysis on Newt Gingrich and the Environment.

* Not surprisingly but importantly, a new study shows that people who believe scientists disagree about global warming tend to be less certain that global warming is happening and less supportive of climate policy.

* The Super Committee failed to come to an agreement on how to cut the deficit, and Climate Progress discusses how this relates to oil subsidies and energy policy.

* Emails from the University of East Anglia’s Climatic Research Unit have once again been hacked and released on the internet.

* Noted environmental historian, Douglas Brinkley, testified before the U.S. House Natural Resources Committee on Congress's latest attempt to open the Arctic National Wildlife Refuge (ANWR) to oil exploration and drilling and faced tough questioning from the Committee and bullying from Senator Don Young.

* The Hill posted a useful summary of the Solyndra controversy.

November 27, 2011 | Permalink | TrackBack (0)

Friday, November 25, 2011

Increasingly High Stakes in State Energy Decisions

As oil and natural gas drilling enabled by hydraulic fracturing has rapidly expanded in the United States, the importance of state regulation has become more apparent--as have concerns about regulatory capture at the state level.  States have the bulk of the regulatory control over this practice, and they have taken different approaches to development, with New York showing perhaps the most precautionary approach.  The New York Department of Environmental Conservation has placed permits for gas drilling and fracturing on hold for wells that require large volumes of water in order to be fractured--which most in the Marcellus Shale do--as it completes a supplemental generic environmental impact statement reviewing high-volume fracturing.  Any drillers wanting to press ahead with these wells while the statement is being completed must undergo a detailed site-specific environmental review.   The public comment period for the Revised Draft Supplemental Generic Environmental Impact Statement ends on December 12, 2011, and The New York Times reports today that as the DEC has come closer to finalizing the statement--and thus to a point where it will begin permitting more wells--industry has taken notice, spending "more than $3.2 million lobbying state government" since the beginning of 2010. I have not seen similar data for other states, but it would be useful to better understand how much money both industry and nonprofits have spent supporting or opposing proposals by other state regulators.  Increasingly, states may be the primary battlegrounds for a number of important energy decisions, from updates to renewable portfolio standards to regulation of oil and gas development.  

-Hannah Wiseman

November 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 24, 2011

A Thanksgiving Post

PICT0218A few blocks uphill from my old San Francisco apartment, halfway up the trail to the top of Buena Vista Park, is a viewpoint over much of the northwestern part of the city.  It’s a beautiful spot, and also a place where one can see tangible evidence of the accomplishments of environmental activism and law.  Had the highway planners of the 1960s had their way, the view would have been dominated by a major freeway.  Instead, in one of the first major victories for the urban environmental movement, activists stopped the freeway and preserved a vibrant set of neighborhoods.  Further in the distance are the Marin Headlands, once slated for a massive residential development but now largely preserved.  On particularly fog-free days, you can look out over the Gulf of the Farallones National Marine Sanctuary to the rocky outcrops of the Farallone Islands.  The air is clear; the water of the bay, though by no means pristine, is swimmable if you can handle the cold; and the city below provides a great balance of development and green space.  It’s a place where environmentalism has worked very well.

Just north of Portland, Maine, the city where I now work, the Presumpscot River pours over a series of ledges before spilling through a narrow gorge and into a small estuary.  The falls are perhaps two 5624884miles from downtown Portland, but the river banks are largely undeveloped save for a local land trust's footpaths.  It looks like a pocket of undisturbed nature in an otherwise urban setting, but looks are deceiving.  In fact, for several centuries dams flooded this stretch of the river, and the falls weren’t there.  Until fairly recently, the river also was so polluted that few people would have wanted to walk along the trails, let alone live nearby.  But the Clean Water Act helped restore the river’s water quality, and after a 1996 storm damaged the dam, the Maine Department of Marine Resources and the Army Corps of Engineers had it removed.  Now anadromous fish are back, the river offers great spots to canoe or swim, and the trails to the falls are a short walk to an oasis of hemlocks and rushing water.   It’s another spot where environmentalism has worked very well.

Thanksgiving seems a good time to think of places like these.  For anyone who cares about environmental policy or law, the past ten years have not been easy, with the dysfunctional politics of climate change headlining a long list of frustrations.  It's easy to feel that environmentalism has mostly been a lost cause.  But all around us there are tangible reminders of what environmental law has achieved, and what it can achieve still.  Today I’m thankful for those places.

-Dave Owen

November 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2011

Climate Change News in a Time Warp

Is anybody else feeling like climate change news has entered a time warp?  Last week, one of the big stories was that climate change will bring more droughts and floods.  As I dug into the story, I realized that yes, this news was spurred by a new IPCC report containing important further analysis of how climate change leads to extreme weather and its policy implications (particularly for adaptation).  But my first thoughts upon reading the headline were: “This is news?” “Haven’t we known this for years?”  “Wasn’t this an important finding of the IPCC’s 2007 report?”

Then, yesterday, a Reuters headline announced, “Record high greenhouse gases to linger for decades”. Apparently, the UN’s weather agency has said that concentrations of greenhouse gases “reached record levels in 2010 and will linger in the atmosphere for decades, even if the world stops emissions output today.”  What’s new(s) about that?

The real kicker came this morning with a headline about hacked emails from East Anglia.  The BBC is reporting that a “new batch of emails and other documents from the University of East Anglia's (UEA) Climatic Research Unit has been released on the internet.”  The story then suggests that the emails are from the original hack, but are just now being put on the internet — timed for maximum disruption of international climate talks.

Is this 2011? Or is it 2009? Or 2007?  Or  perhaps even some earlier year?

I should make clear that I am happy that climate change is at least still showing up in major news outlets even if the substance of the news is not particularly new.  But this time warp feeling is quite disturbing given that time is of the essence in mitigating greenhouse gas emissions.  It was several years ago that I recall first hearing that the window of opportunity for avoiding the most damaging climate changes was closing.

Oh – and have you heard the latest climate change news?  The window (er, door) of opportunity for preventing irreversible climate change is closing, according to a new report by the International Energy Agency. 

-  Lesley McAllister


November 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Abramoff on Protecting Us from People Like Abramoff

Over the past several years, the words Jack Abramoff have come to mean political corruption.  While the challenges posed by those like Abamoff who use access and money to influence lawmakers and government employeees are much broader than the world of environmentmental policy, many would argue that these challenges are a major stumbling blocks standing in the way of sensible environmental policy. 

Here Abramoff sizes up the extent to which politics has changed since the events that transpired that made him infamous and landed him in prison.  


Despite the messenger, the segment provides a substantial warning that Washington needs much more than what politicians have propped up as reform.  If Washington ever changes its license plates to say something other than "Taxation Without Representation," I hope the District decides to use the apt words spoken by Jack Nicolson playing the Joker in the movie Batman: "This Town Needs an Enema."

 -- Brigham Daniels

November 22, 2011 | Permalink | Comments (2) | TrackBack (0)

Monday, November 21, 2011

A Snapshot of Climate Change - the Morris Island Lighthouse

A student in my Natural Resources Law class is writing a very interesting article on coastal erosion, the public trust doctrine, and takings. She passed along this interesting photograph of Morris Island, SC. As you can see in the image, moving left to right, the lighthouse was originally constructed 1200 feet onshore, then in 1938 was on the coast, and is now, well, in the ocean.

Morris Island1

Here is another fascinating image taken from Google Earth (you can see the faint description of the "Morris Island Lighthouse" just to the right of the center of the picture):

Morris Island2

Our coastal areas have always been dynamic, but that dynamism will only become more apparent as sea levels rise. These images of Morris Island should give us pause. Over the last three decades, nearly half of all new construction in the United States has been in the coastal zone, and approximately fifty-three percent of the total U.S. population lives on the seventeen percent of land in the coastal zone. By 2000, counties along the coast had more than four times the population density of counties further inland.  By 2020 an additional twenty-seven million people are expected to call the coast home (see here for citations). As a result, sea levels rising at exponential rates (over geologic time scales) will meet head-on with a rush of humans heading at exponential rates right into the face of rising sea levels—an ironic scenario that demonstrates the circular nature of human psychology related to climate change and sea level rise. Humans exacerbate climate change through the emission of copious quantities of carbon, and as a result sea levels rise; then humans move in disproportionate numbers into areas likely to be inundated by rising sea levels; then society expects governments to alleviate their difficulties after it becomes apparent that their structures will be out to sea. Hopefully we can take proactive actions to prevent more and more human-built structures from being consumed by the most vast natural resources on the earth - our oceans.

- Blake Hudson

November 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, November 19, 2011

In Case You Missed It: Week of November 13-19

The IPCC released a Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation finding that extreme weather will increase with climate change. (The 29-page Summary for Policymakers is here; the full report will be available in February.) (Washington Post)

The BBC will air a seven-episode Frozen Planet mini-series in Britain focusing on arctic wildlife, the last of which deals with climate change.  Viewers in other countries, including the US, will reportedly only see the first six episodes because the BBC has made purchase of the seventh episode optional to increase sales.  (   

The Obama administration proposed fuel economy standards that would almost double the average gas mileage for each automaker's passenger vehicle fleet to 54.5 miles per gallon by 2025 (LA Times)

The Atlantic State Marine Fisheries Commission (ASMFC) reduced the allowable catch of menhaden (used to make fish meal) by 37 percent by 2013. Due to overfishing, the menhaden fish population has fallen 92 percent from historical levels.  (

The NY Times analyzed how the Obama Administration’s September decision not to strengthen the ozone standard was influenced by re-election campaign strategy.

November 19, 2011 | Permalink | TrackBack (0)

Thursday, November 17, 2011

The Penobscot River Restoration Project

Dam removals have featured prominently in the news of late, with the Condit and Elwha Dams both coming down (cool footage here; notice the uncanny resemblance between the first rush of water and the smoke monster from Lost) and with Klamath dam removal legislation now introduced in Congress.  That makes this as good a time as any to highlight another major dam removal project in my home state of Maine.

Schoodicstreamdam-540-405-80The project involves the Penobscot River, which begins near Mount Katahdin (the northern terminus of the Appalachian Trail) and discharges west of Acadia National Park.  In between, the river drains a lot of high quality habitat (such as the tributary shown at left; the photo is from the Penobscot River Restoration Trust's website) but also flows through a series of dams.  Many of the dams are quite old and lack fish passage facilities.  While the river still supports some fisheries, including a run of endangered Atlantic salmon, its diadromous fish runs are a small fraction of their historical scale.

For years, the Penobscot River Restoration Trust, a partnership between several environmental groups and the Penobscot Indian Nation, has worked with PPL Corporation, which owns several of the dams, on a restoration project.  The details are described on the Trust's website, and in several articles written by some of the project participants (examples here, here, and here), and I'll just give a quick summary.  The river's two lowermost dams will be removed.  A third dam will be decommissioned, and will be left in place with improved fish passage facilities.  Four other dams will also receive fish passage improvements while continuing to operate.  Normally dam removal projects involve trading habitat gain for the loss of a non-polluting energy source, but here, PPL Corporation will be allowed to boost hydropower capacity at six remaining dams, effectively offsetting the capacity lost through dam removals and decommissioning (PPL also will receive a large amount of money, which the trust members obtained through a major fundraising effort).  The net effect will be dramatic: by planning at a basin-wide scale, rather than one dam at a time, the participants will achieve a huge increase in habitat accessibility with little or no loss of power production capacity.

Before & After Penobscot Slide
Image from Jeffrey J. Opperman et al., The Penobscot River, Maine, USA: A Basin-Scale Approach to Balancing Power Generation and Ecosystem Restoration, 16 Ecology and Society 7 (2011).  Thanks to Colin Apse for sending me the image.

There's much, much more to be said about the project, and it will likely be the subject of much more academic analysis (teams already are working on before-and-after studies of the project's effects; one example already is documented here).  I'd encourage anyone interested in renewable energy generation, endangered species protection, large-scale ecosystem restoration, or collaborative environmental decision-making to check the Penobscot project out.  It's a really exciting effort.

-Dave Owen

November 17, 2011 | Permalink | Comments (0) | TrackBack (0)

What Perry's Oops Moment Might Mean for the Nation and EPA

Over the past week or so, there has been much talk about what Governor Rick Perry's oops moment might mean for his campaign.  For those unfamiliar with the situation--such as those who have just come out of a deep comma--let me briefly recap. 

In a debate a week ago Wednesday, Perry could only remember two of the three government agencies that he had proposed to eliminate.  After stumbling and fumbling to buy time, he had to admit he could not remember the third agency he would eliminate.  He ended his answer by slightly shrugging and saying "oops."  For those of you who have not seen it or for those who have the stomach to watch it again, here it is:


Many have speculated that his oops moment effectively ended Perry's chances of becoming the Republican nominee.  That probably is the case, but so what?  Perry did not have much of a chance even before this slip up.  Why?  Three reasons.  First, he was already tanking in the polls.  Second, he was unable to keep up with the other candidates in the debates.  And, third...  um... I can't remember...  (Oops.)  But, regardless, I thought his chances were slim at best. 

So to me, the most important part of this moment was not seeing Perry implode but rather seeing the other candidates respond to it.  In particularly, I wondered how Governor Mitt Romney would respond, after all he is largely considered the front runner for the nomination.

So, what was Romney's response?  In the moment, Romney tried to throw Perry a lifeline by suggesting that perhaps Perry meant EPA.  Perry tried to fake for a second that EPA was the agency he was trying to remember before admitting he could not come up with it. 

My question is, what does Romney's suggestion of EPA tell us about how Romney perceives EPA?  Maybe it says nothing, but maybe it says a lot.  Up to this point, Romney has not taken as an extreme line as some of the other candidates in opposing EPA's policies, programs, or even its existence.  While his suggestion that Perry may have meant EPA is a far cry from Romney calling for the elimination of EPA, the fact that this was the agency that came to Romney's mind is worrying to me.  As someone who cares a lot about the work EPA does, I want to avoid the situation where the nation has its own oops moment and elects a president who might support the elimination of one of its most popular agencies.

-- Brigham Daniels

November 17, 2011 | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 16, 2011

Call for Articles - Fordham Environmental Law Review

In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water.  They have issued a call for papers, with a deadline of December 15, 2011.  The details follow:


The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40th anniversary of the Clean Water Act.

The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights.  Articles may address state, national, or international issues. Suggested topics include:

  • Clean Water Act
  • Hydrofracking
  • Waste water treatment and disposal
  • Citizen suits
  • Invasive Species
  • Conflicts between federal and state rights
  • Congressional activism on environmental/ energy/resource issues
  • Environmental enforcement at the federal, state and local level
  • EPA and Surface Mining Act
  • Agency issues
  • Congress v. Agencies
  • Role of science
  • Cross-jurisdictional consistency/standards


Authors will work with an editor from the ELR Board throughout the publication process.  Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation).  ELR article guidelines can be found on the ELR website at:

Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review

-Lincoln Davies


November 16, 2011 in Climate Change, Current Affairs, Governance/Management, Law, Sustainability, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Mulls Katrina Flood Ruling

Today’s question: When are flood waters not “flood waters”? We New Orleanians have become fluent in all things subaqueous; last week three Texans sitting on the Fifth Circuit Court of Appeals took their turn.

Yes, we’re talking about Katrina. Or, more specifically, its flood waters, which busted federal levees in fifty places, swamped 80% of New Orleans, and caused 800 deaths in the urban area. It is beyond argument that federal malfeasance played a key role. But sovereign immunity under the 1928 Flood Control Act (FCA) seemed sure to prevent residents from pursuing any flood-based claims against their government.

Yet as recent developments suggest, the case for immunity may not be nearly so open and shut.

Back in the 1920s, when the federal government assumed responsibility for levees on the Lower Mississippi, Congress worried that such a mammoth endeavor could expose the country to overwhelming liability. So they wrote into the FCA an immunity provision: “[no] liability of any kind shall attach to . . . the United States for any damage from or by floods or flood waters at any place.” This sweeping language has proved remarkably steadfast, if not occasionally abhorrent. Take, for instance, the time when federal operators idiotically opened floodgates of a recreational reservoir without first warning a group of waterskiers, one of whom was summarily sucked down the vortex and killed. In James v. United States(1986)a majority of the Supreme Court found government immunity too clear to avoid, leaving a trio of dissenting justices wailing about an outcome they called both “perverse” and “barbaric.”

But I digress. 

The point is that after Katrina many assumed FCA immunity would shield the Corps from any responsibility for its wrongdoing. That changed in 2009 when federal trial judge Stanwood Duval held that the government’s broad immunity had limits. The case involved claims by residents in the New Orleans area for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet, a now de-authorized navigation channel that locals called, “Mr. Go.” Plaintiffs assert that the Corps' negligence in design, construction, and maintenance of Mr. Go increased Katrina’s surge and made the levees more vulnerable than they otherwise would have been.

After an endless trial, Judge Duval found that the most important facts alleged by plaintiffs were all essentially true and that the Corps had been serially negligent. On the government’s assertion of FCA immunity, Duval wasn’t buying. Such immunity, the judge explained, did not cover harm caused by negligence unrelated to flood control management. Put another way, flood waters in everyday language are not “flood waters” in FCA language, unless their damage flows from a mishandled flood control project. And because Mr. Go was a navigation project, not a flood control project, the Corps’s immunity was gone.

Judge Duval awarded a total of $720,000 in damages to five plaintiffs, and the government appealed.

And so, last Wednesday a thoughtful Fifth Circuit panel (Judges Jerry Smith, Edward Prado and Jennifer Walker Elrod) pondered once again the fluid meaning of the term, “flood waters.” (Judge Duval had also rejected a second theory of immunity based on agency discretion, but that holding did not seem to interest the panel much.) (You can listen to the panel’s argument here.)

Now, as you have probably already figured out, this case is about way more than $720,000. The Army Corps has already received around half a million administrative claims from flood victims alleging similar facts. If the Fifth Circuit sides with the plaintiffs (and is not reversed on appeal) the precedent could leave the government on the hook for billions of dollars in future damages.

Plaintiffs’ lawyer Pierce O’Donnell reminded the court that FCA immunity has not always proved immovable. The Supreme Court, in Central Green Co. v. United States (2001), distinguished between irrigation water and flood-control water to hold the government liable for flood damage arising from negligent operation of an irrigation project. If you call Mr. Go’s surge “navigation water,” Mr. O’Donnell suggested, the plaintiffs win. Besides, he noted, there’s Graci v. United States(1969), a trial court decision the Fifth Circuit had itself affirmed years ago, that specifically holds that flood damage from the mishandling of a navigation project does not bring immunity.

Justice Department lawyer Mark Stern insisted instead that the statute’s plain meaning must control. But from the bench, hypotheticals came flying. What if federal construction workers accidently weaken a nearby levee and it breaks, does immunity accompany that kind of flood water? What about a naval ship that smashes through a levee? Or an Air Force jet that crashes through a levee? Or a scrap of the Hubble Telescope that sails out of orbit, screams through the atmosphere, and vaporizes a levee? (O.K., I made the last one up, but you see where this is going.)

And, by the way, what does the court do with Graci, that child of the ‘60s, which seems, after all, so directly on point? The court really doesn’t know what to do with Graci. No one even knows how to pronounce it. At one point an exasperated judge asked for a show of hands on whether one should say “GRAY-see” or “GRAS-ee.” Even after that, the parties couldn’t keep it straight.

Guest post written by Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans (bio) His recent book, "Facing Catastrophe: Environmental Action for a Post-Katrina World," will soon be available in paperback. This post was cross-posted on the Center for Progressive Reform blog.

November 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2011

Strategies for Dialogue Across Disciplines: University of Minnesota's Institute on the Environment's "Outburst!"

I am currently sitting and learning at the University of Minnesota's Institute on the Environment's "Outburst!" event.  If you'd like to come join in, you can link into the live stream.  It's a very interesting model for encouraging interdisciplinary interchange through which many of the Institute's residential fellows present for 3 to 5 minutes about their projects.  Presenters are from a wide range of departments and entities, including: Applied Economics; Agronomy & Plant Genomics; Bioproducts/Biosystems Engineering; the Center for Sustainable Building Research; Chemistry;  Computer Science and Engineering; Civil Engineering; Ecology, Evolution & Behavior; Epidemiology and Community Health; Environmental Health Sciences; Fisheries, Wildlife, and Conservation Biology; Geography; Law; Plant Biology; the Science Museum of Minnesota; Science, Technology & Public Policy; and Soil, Water, and Climate. The presentations allow people to quickly get a sense of each other's research, which then can seed future connections. I'd welcome your comments and strategies for creating dialogue across disciplines and will highlight some others in future posts.

Hari Osofsky

November 15, 2011 | Permalink | Comments (1) | TrackBack (0)

Duke Society of American Foresters Fall 2011 Forestry Symposium

The Duke Society of American Foresters Fall 2011 Forestry Symposium will be taking place Friday, November 18, 2011. See the announcement here.

"Get Ready for our Fall symposium!! Please join us on Friday, November 18, 2011 for 'From Research to Reality: Exploring how Biomass, Climate Change and Forest Technology are affecting the forests of the Southeast,' featuring keynote speaker, Dr. David Wear, lead author of the Southern Forest Futures Project."

- Blake Hudson

November 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

Participate in The Economist’s Debate about Subsidies for Renewables

Beginning last week and extending through this week, The Economist is hosting on online Debate on the following assertion, "This house believes that subsidising renewable energy is a good way to wean the world off fossil fuels."   Here’s how an Economist Debate works:   

"Economist Debates adapt the Oxford style of debating to an online forum. The format was made famous by the 186-year-old Oxford Union and has been practised by heads of state, prominent intellectuals and galvanising figures from across the cultural spectrum. It revolves around an assertion that is defended on one side (the "proposer") and assailed on another (the "opposition") in a contest hosted and overseen by a moderator. …  Those attending an Oxford-style debate participate in two ways: by voting to determine the debate’s winner and by addressing comments to the moderator. The same holds here. As a reader, you are encouraged to vote. As long as the debate is open, you may change your vote as many times as you change your mind. And you are encouraged to air your own views by sending comments to the moderator… who will single out the most compelling for discussion by the speakers."

Opening statements were last Tuesday, and closing statements are tomorrow. Currently, the opposition is winning:  only 47% of voters have agreed with the assertion.  I encourage you to check it out and vote by Friday (GMT) when the votes will determine the final outcome.  

And if you like participating in such debates, you will be glad to learn that the assertion to be debated next (from Nov. 22 to Dec. 2) is also very relevant: "This house believes that climate control policies cannot rely on carbon capture and storage."

- Lesley McAllister

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Chopsticks Destroy Forests, While Toymakers Save Them

I couldn't help but link up these two items within the same post. Chopsticks and toys - who would think that these common items would implicate forest resources to a great degree? 

How many trees does it take to produce China's chopstick demand for one year? 3.8 Chopstick2-blog480 million trees. It takes 3.8 million trees to manufacture 57 billion pair of disposable chopsticks. And this is only half of the chopstick demand worldwide, according to an article in the New York Times. The article goes on to state that: "Chopsticks add to a plague of regional deforestation. According to a 2008 United Nations report, 10,800 square miles of Asian forest are disappearing each year, a trend that must be arrested to fight climate change, given the vital role trees play in absorbing carbon dioxide." Not only do chopsticks threaten the forests, but also may lead to human health risks as "industrial-grade sulfur, paraffin, hydrogen peroxide and insect repellent are among the harmful chemicals that Chinese media investigations have exposed during production. . . Paraffin is a known carcinogen, and hydrogen peroxide can harm the digestive system. Chopsticks irresponsibly disposed of can contaminate water and soil quality." Of course, the alternative to disposable wooden chopsticks are plastic reusable ones. I have opined about the sometimes greater, sometimes lesser of evils plastic products seem to present here, here, here, and here. Yet again, plastic usage vs. consumption of other natural resources provides a trade-off. All of the problems that go with the chemicals and petroleum products used to make plastics may be worth a trade for leaving 10,800 square miles of Asian forest intact each year - especially considering the role of forests in combating climate change. Furthermore, plastic chopsticks sequester carbon and store it away (virtually) forever, given how long plastic persists in our environment. But who knew my frequent trips to Pei Wei were fraught with such a choice of evils: use plastic forks that persist in the environment forever, contribute to land waste issues, and contain harmful chemicals, or use disposable chopsticks that destroy important forest resources. And all I wanted to do was enjoy my Honey Seared Chicken.

Meanwhile, toymaker Hasbro has taken steps to fight deforestation. Hasbro Tree Hugging Transformer is the second largest toy company in the U.S. and has recently introduced a new packaging policy that no longer uses forest products from deforested rainforest. Mongabay reports that Hasbro made the policy shift in response to a Greenpeace campaign that targeted toy companies who use packaging manufactured from deforested rainforest. Mattel and Lego have undertaken similar measures. The campaign specifically targeted Asia Pulp & Paper, a company blamed for leading to rainforest destruction in the Indonesian island of Sumatra, home of the Sumatran tiger - the last Indonesian tiger.

So when you eat Asian food, consider your choice of utensil carefully. And when you consider which toy to buy as a birthday gift, consider the company that produces it. Each of these choices can impact forest resources across the globe - forests that provide innumerable benefits, not the least of which is perhaps the easiest means of combating climate change through carbon sequestration (forest destruction and degradation, after all, account for 20 percent of carbon emissions worldwide each year - more than is emitted by the transportation sector). 

- Blake Hudson

November 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 13, 2011

In Case You Missed It - Week of November 6-12

* The White House's Office of Management and Budget began reviewing greenhouse gas and toxics rules for power plants.

*The REINS Act, which would have fundamentally changed federal rulemaking processes, died as the Senate declined to approve the larger infrastructure bill in which the REINS Act was included.

*Electricite de France, one of the world's largest utilities, was found guilty of illegally spying on Greenpeace.

*The Obama Administration postponed its decision on the Keystone XL Pipeline until after the 2012 election.

November 13, 2011 | Permalink | TrackBack (0)

Saturday, November 12, 2011

Pharmaceuticals in Our Fish

One of my Natural Resources Law and Policy students is doing an interesting research paper on how to better control the vast quantities of pharmaceuticals making their way into our water resources. She passed along the below informative image, which depicts "the relative amounts of four pharmaceutical drugs found in fish pulled from Chicago's North Shore Channel," and includes antihistamine, antihypertensive, antidepressant, and antiseizure medications. The visual really drives home the potential threats to our fisheries and human health when we allow the drugs we use to enter our water systems.

- Blake Hudson

Drugs in Fish

November 12, 2011 | Permalink | Comments (1) | TrackBack (0)