Environmental Law Prof Blog

2011's Seven Most Significant U.S. Environmental Policy Stories

For my money, here are the seven most significant U.S. environmental policy strories of the last year.

1.  Still no federal climate change policy.  While we did see some efforts by states, regions, and even federal agencies to takle greenhouse gas emissions, the fact that we still do not have a federal mechanism to address the problem more broadly is in my opinion the biggest environmental policy story of the year.  Global emissions continue to climb, and we have not really left the starting gate to address the most signficant environmental challenge of this generation.

2.  EPA's new mercury rule.  This is likely to have signficant impacts on a number of the country's most significant polluters, particularly older coal-fired power plants.   

3.  The Obama Administration's decision to back off revising the ozone standard.  The new standards would have meant cleaner air throughout the country and could have incentivized investments in cleaner technologies and pollution reduction.  It was an opportunity squandered.

4.  Efforts in Congress to cut environmental funding and undo environmental regulations.  Due to efforts by those in Congress, environmental funding took a significant hit in 2011.  Additionally, Congress ended up successfully attaching a number of anti-envrionment riders to important legislation, including a rider that will delay regulations designed to promote energy efficienct light blubs and another one that will force the Obama Administration to make a decision on the Keystone XL tar sands pipeline within the next couple of months.  

5.  New fuel standards.  The new fuel standards for automobiles are set to reduce the country's emissions from cars and trucks by about half by 2025.

6.  The Solyndra controversy.  Regardless of what one thinks about the merits of the controversy, the fact that there is now a controversy regarding Obama's policies surrounding clean energy and green jobs is significant.  Up until this controversy, clean energy and green jobs had little political downside for the Obama Administration.  Solyndra changed all of that.

7.  Republican presidential candidates targeting EPA and climate change policy.  Any candidate who has a realistic chance at becoming the Republican presidential nominee took firm positions criticizing EPA and questioning EPA's attempt to regulate greenhouse gases.  Regardless of who wins the nomination, positions taken in 2011 suggest that the stakes are very high for the environment in the 2012 presidential election.    

-- Brigham Daniels 

EPA's Christmas Present

Every Wednesday night, my daughter eats a large piece of fish.  That might not seem so amazing, except that Ana is three, and picky even by three-year-old standards, so her weekly slab of cod or haddock is completely out of character.  Of course, that weekly out-of-body experience does not come without some parental involvement, and the rules here, which she enforces with ruthless consistency, require that while Ana eats, my wife or I must tell her a story about a girl and a fish.  We’re responsible for fleshing out content, but she usually dictates the general plot.  It almost invariably involves going out on a boat with her grandfather and her friends, catching a few fish, and eating them for lunch.

And there lies a sad twinge of irony.  In Maine, at least, I would never let that story come true.  There are fish consumption advisories on almost every freshwater fish in every lake, river, and stream in the state (some ocean fish, like the groundfish we usually buy, contain lower levels).  The reason is mercury contamination, much of it carried on the wind from out-of-state power plants. 

Thankfully, last week EPA passed new mercury rules for power plants, and thus took a big and long-overdue step toward rectifying that situation.  And, predictably, it has been pilloried by industry groups and their Congressional supporters.   But to me, this seems beyond reasonable argument.  When an activity as common, as traditional—indeed, as culturally ingrained--as catching and eating freshwater fish has been effectively taken away from an entire state (and of course, the impacts aren’t just to Maine), it seems clear, to me at least, that an effective regulatory response is not just economically but also ethically compelled.

EPA’s new rule probably won’t allow Ana to safely eat freshwater fish caught with her grandfather in Maine.  Environmental mercury levels take a very long time to decline, and she’s growing up fast.  But perhaps one day, when she takes her granddaughter fishing, those fish consumption advisories will seem like tales of the burning Cuyahoga River—exhibits of environmental absurdity from eras past, resolved, thankfully, by the intervention of environmental regulators and environmental law.

-Dave Owen

In Case You Missed It - The Week of December 18-December 24

Happy Holidays!  First, a few holiday-oriented bits of environmental news given the confluence of holidays this week:

* As noted by the Huffington post, an electronics store in Vietnam built a Christmas tree from 2500 unusable cell phones to raise awareness about hazardous waste and environmental responsiblity.

* Rabbi AB Itkin of Chabad of Ulster County lit a solar-powered menorah in Woodstock, New York in celebration of Chanukah.

* Malaysia Youth 4 EcoGreen Coalition (MY4Eco) organized the GoGreen Winter Solstice Celebration, which featured a tang yuan (glutinous rice ball dessert) making session and a catwalk with models wearing clothing made from organic material, in order to raise environmental awareness.

Second, in other non-holiday-oriented news:

* The European Commission unveiled Energy Roadmap 2050, the next step in its plans to reduce carbon emissions by at least 80% without disrupting energy supplies and competitiveness.

* The European Court of Justice upheld charging airlines flying in and out of Europe for their carbon emissions.

* The U.S. Environmental Protection Agency (EPA) issued its first national Mercury and Air Toxics Standards.

* The U.S. Department of Energy awarded nearly $7 million in research and development funding to help reduce the current costs of electric vehicle chargers by 50 percent over the next three years. 

* The Connecticut Department of Energy & Environmental Protection approved two new solar power projects, the largest commercial projects thus far in the state.

The 2010 US Energy Use Flow Chart

Lawrence Livermore National Lab released the 2010 version of the US energy use flow chart recently. I find it useful for introducing students to the big picture of our energy use.

It shows that nine major types of energy sources (petroleum, natural gas, coal, nuclear, etc.) with a total energy content of 98.0 quadrillion BTUs (quads) supplied US energy demand in 2010. Of the 98 quads, 41.88 were ultimately consumed as energy services in the residential, commercial, industrial and transportation sectors, while 56.13 were lost (“rejected,” or wasted energy), generally in the form of waste heat and transmission line losses. In other words, our energy system has an overall efficiency of 42.8% (41.88/98.0).

Comparing with previous years (2008, 2009 and 2010 available here), we can observe that we used 3.4 more quads (almost 4%) than in 2009, but 1.2 fewer quads than in 2008. How are renewables faring? Wind energy has almost doubled from .5 quads in 2008 to .92 in 2010. Solar has grown less substantially over the same time period, from .08 to .11 quads.

- Lesley McAllister

Potential Supreme Court Case on Forests and Water: Is a CWA Permit Required for Stormwater on Forest Roads?

In the recent (2011) case of Northwest Environmental Defense Center v. Brown (640 F.3d 1063) environmental groups brought a claim against the state of Oregon and various timber companies for alleged violation of the Clean Water Act. The groups claimed that it was a violation of the CWA for parties not to obtain NPDES permits from the EPA for stormwater discharged from logging roads through a system of ditches and culverts and into streams and rivers - claiming that such ditches and culverts are "point sources" under the CWA. Stormwater, of course, carries a great deal of sediment into waterways, resulting in eutrophication ("dead zones" and hypoxia) that robs organisms of oxygen, interferes with fish feeding and reproduction, destroys aquatic habitat, and leading to a variety of other problems.

Defendants claimed that they were exempt from such permits under the "Silvicultural Rule." Congress had previously explicitly exempted certain agricultural discharges from CWA permitting through statutory amendment. The Silvicultural Rule, however, was promulgated by the EPA in its own discretion. The first iteration of the Silvicultural Rule was struck down by the D.C. Circuit, the court finding that the EPA did not have the authority to make categorical exemptions of point source discharges.

Rather than distinguishing runoff which was discretely conveyed and subject to CWA permitting (point source) versus runoff that was not discretely conveyed and clearly not covered by the CWA (nonpoint runoff), the second iteration of the Silvicultural Rule drew a distinction between natural runoff and "controlled water used by a person" (640 F.3d at 1078) and therefore "treat[ed] all natural runoff as nonpoint pollution, even if channeled and discharged through a discernible, confined and discrete conveyance." (640 F.3d at 1076). As a result, in NEDC v. Brown the 9th Circuit Court of Appeals held that "the Silvicultural Rule does not exempt from the definition of point source discharge under § 512(14) stormwater runoff from logging roads that is collected and channeled in a system of ditches, culverts, and conduits before being discharged into streams and rivers." (640 F.3d at 1080). The court further found that the 1987 amendments to the CWA dealing with stormwater, and not explicitly disturbing the Silvicultural Rule, did not mean Congress acquiesced to EPA's regulation, finding that "there is no indication that Congress was aware of the Silvicultural Rule when it adopted the 1987 amendments." (640 F.3d at 1081). In closing, the court noted that "in cases where Congress has not provided statutory exemptions from the definition of point source, federal courts have invalidated EPA regulations that categorically exempt discharges included in the definition of point source discharge contained in § 502(14). The most directly relevant example is . . . the D.C. Circuit's invalidat[ion of] the original version of the Silvicultural Rule which had exempted all discharges from silvicultural activities." (640 F.3d at 1086).

Cert in the case has been filed, and a variety of amici have been filed, including 26 states who filed a joint brief supporting review of the Ninth Circuit's decision (Arkansas, Alabama, Alaska, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maine, Mississippi, Missouri, Montana, New Hampshire, New Mexico, Michigan, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wyoming). These states are in part basing their opposition on the long-held view that state governments have traditionally maintained sole authority to decide matters of forest management regulation. Cert has yet to be granted or denied, but the U.S. Supreme Court has issued an order asking the Solicitor General for the views of the federal government on the matter.

For more on the case see here, here, here, and here. 

This will be an interesting case to follow, as it has a great number of implications for forest operations on both public and private lands. The federal government may argue it would be overwhelmed with NPDES permit applications, while many states and private forest companies and owners are set on dealing with the issue of stormwater runoff (or not dealing with the issue) through their traditional Best Management Practices approach (many of which - especially in the southeastern U.S. - are completely voluntary). On the other hand, eutrophication of our waterways is a serious problem, and agricultural and industrial operations that take place as far away as Minnesota have deleterious impacts on resources as far away as the Gulf of Mexico, as fertilizer and sediments create dead zones the size of the state of New Jersey.

If the Supreme Court grants cert and overturns the decision, it will be a victory not only for government regulators who would like to see the EPA be able to exercise a greater degree of flexibility in CWA permitting on federal forestlands, but also for those who believe state and private forest management is the sole constitutional purview of state and local governments, as has been the traditional view. Because the federal government has never passed statutes aimed directly at subnational forest management - forests being one of the last resources the feds have yet to attempt any direct control over - the federal government has relied on indirect statutes in the form of the CWA and ESA to impact forest activities on a limited basis. This case, however, has the potential to provide a fairly substantial indirect involvement of the federal government in subnational forest management activities, because while the chances of an endangered species being present within one's forest may be rare, all forests have runoff from forest roads, and much of that water is indeed "discretely conveyed." So, I for one am really interested to see the outcome of this series of cases. Stay tuned.

- Blake Hudson 

In Case You Missed It - The Week of December 11-December 17

* The World Wildlife Fund claims that Asia Pulp & Paper has engaged in "greenwashing," has mislead the public, and has improperly cut sections of Indonesian rainforest.

* Youth farms and school gardens provide an outlet for New Orleans teens.

* "U.S. Department of Agriculture Releases Stricter Standards for Decreasing Use of Fertilizers"

* Yale engineers have made great strides in improving the efficiency of solar panels.

* And the first U.S. off-shore wind farm is in the state of........Texas? 

* A record number of renewable energy patents were handed out in the third quarter of 2011.

* Colorado and Texas adopt rules requiring companies to disclose the chemicals used in fracking.

* A study finds that children suffering from ADHD can reduce symptom severity by getting more "Green Time" outdoors.

"Baby's Drinkin' Coke From a Plant-made Bottle and Wearin' Tight-fittin', Air-purifyin' Jeans"

Conway Twitty - "Tight Fittin' Jeans"

Yes, that does sound like the title of a country song - albeit one with an environmentally conscious message. Indeed, it is an occurrence that may soon come to pass given the increased focus of big name brands on environmental protection.  I have posted previously about the problems that plastic contamination poses as a general matter, but here is a great new technological advancement that can alleviate some of those concerns: Coca-Cola and Pepsi are currently battling to be the first to bring fully recyclable, fossil-fuel-free plastic bottles to the market - bottles made entirely from plant product. Coca-Cola actually plans to replace all of its petroleum-based plastics with bio-based materials over the next decade.

I also posted previously about Puma's compostable clothing line. Designer Helen Storey has taken a similar approach, designing dresses that dissolve in water and, even more interestingly, jeans laced with titanium dioxide that allow wearers to clean the air as they go about their daily business. As NewScientist explains,

Manufacturers have long used nanoparticles of titanium dioxide in products from paint to cement to improve air quality. TiO2 is a photocatalytic compound, reacting to sunlight to turn harmful nitrogen oxide gases into harmless nitrates that can be washed away. Where TiO2 has been used on roads and buildings, NOx levels have been cut by as much as 60 per cent...To cut 3 tonnes per day - roughly the amount needed to lower NOx to optimal levels in Sheffield [UK] - you would need some 300,000 people walking around in treated jeans.

So maybe "Baby's Drinkin' Coke From a Plant-made Bottle And Wearin' Tight-fittin', Air-purifyin' Jeans" will hit the shelves of music stores soon. After all, it would not be completely without precedent. Perhaps I am taking liberty with the lyrics here, but David Allen Coe made a similar point in his classic "You Never Even Called Me By My Name,"

Well, I was installing a solar panel on my roof...the day my mom...got out of prison

And I went...to pick her up...in my hyyybrid

But befoooorree I could get to the station in my 40-mile-per-gallon pickuuup truck

She got runned over by a damned new high-speed-rail traaaiiiinn

- Blake Hudson

Impervious Cover TMDLs

This morning, I sat in on a public meeting where representatives from EPA Region 1 and the Maine Department of Environmental Protection answered questions about Maine DEP’s statewide impervious cover TMDL.  “Statewide impervious cover TMDL” may sound like a mouthful, even by environmental law standards, but when you unpack the terms and look at what DEP and EPA are trying to do, it’s pretty intriguing.

For decades now (as wonderfully chronicled here), TMDLs have been the neglected step-child of the Clean Water Act.  Getting TMDLs drafted, let alone turning them into a meaningful set of pollution controls, has been a challenge.  The difficulties have been particularly acute for streams impaired by urban stormwater runoff, which, unfortunately, means just about every stream in urban or suburban America.  Those streams generally are impaired by wide variety of stressors, only some of which would meet the Clean Water Act’s definition of “pollutant,” which makes them poor candidates for the pollutant-by-pollutant mass budgeting that Clean Water Act section 303 seems to require.

To address those problems, Maine (with the blessing of EPA Region 1) is trying something different.  Its first innovation (also pursued in Connecticut and, in slightly different form, in Vermont) was to prepare TMDLs for impervious cover (meaning roads, roofs, parking lots, and other surfaces that prevent rainwater from infiltrating into the ground) rather than for individual pollutants.  Scientifically, that makes good sense.  Impervious cover either causes or at least correlates with most of the stressors that degrade urban streams, and one of the best ways to protect urban watersheds is to limit the construction of new impervious cover and to treat stormwater running off existing impervious surfaces.  Maine’s second innovation was to try preparing an impervious cover TMDL for twenty-nine streams at once (in a more urbanized state, that number could be much higher).  Again, this makes sense; similar dynamics affect urban watersheds across the state, and there are obvious efficiencies in treating similar problems in a single document.

But, as today’s meeting revealed, there are also challenges.  A statewide impervious cover TMDL may address some of the standard problems with creating TMDLs, but it doesn’t resolve all the problems with protecting urban watersheds.  We still tend to develop our communities in ways inimical to protecting water quality.  And by the time we realize we our waterways are impaired, and we begin preparing TMDLs, the potential fixes aren’t at all cheap.  A better approach to writing TMDLs doesn’t make those problems go away.  It may help people understand them, but it also places them in a spotlight.  That can make municipal governments, which expect that they will eventually bear primary responsibility for addressing the problem, a little uncomfortable, and the discomfort was readily apparent at today’s meeting.  The great future challenge for urban water quality, then, is to find ways to help local governments address those challenges, or, better yet, to find effective regulatory approaches that help us develop in ways that stop water quality impairment before it starts.

-Dave Owen

World's Tallest Buildings - Now and In the Future

Did you know there was a "Council on Tall Buildings"? I didn't. The Council has coined a new designation known as "megatall" buildings, some of which can be seen in the above image. Kingdom Tower (seen in the image below left), to be completed in 2018, will be over 1 kilometer tall, nearly twice as tall as the new One World Trade Center! More information on the info-graphic can be found at SmartPlanet. I posted previously about Skyscraper Forests (see image below right). Now, if we only had a few forests rising 1 kilometer into the sky that could be a useful way to sequester carbon and assist in the battle against climate change.

- Blake Hudson

Six U.S. States Withdraw from the Western Climate Initiative

This is last month’s news, but I didn’t discover it until a few days ago when I was updating my draft casebook on Climate Change Law & Policy (Aspen, forthcoming 2012, with Hari Osofsky): all the U.S. states except for California withdrew from the Western Climate Initiative (WCI) in November. Having lost Arizona, Montana, New Mexico, Oregon, Utah and Washington, the WCI now consists of California and four Canadian provinces (British Columbia, Manitoba, Ontario and Quebec).

What happened? In 2010, Arizona and Utah both announced that they would remain WCI partners but not participate in the WCI cap-and-trade program. In both states, the governor who had agreed to the pact was no longer in office, and the new governor decided that the program was not in the state’s interest (see, e.g., State of Arizona Executive Order 2010-06). By late 2010, the only U.S. states that had passed enabling legislation for the regional cap-and-trade program were California and New Mexico. Then, New Mexico elected a new governor who didn’t support the pact, and she removed all members of the board working on the regulations four days after taking office on January 1, 2011. In the end, the announcement last month that California would be the only remaining WCI partner in the U.S. was not particularly surprising.

Why did it happen? One part of the answer is “the Great Recession.” Another part comes from acknowledging the instability inherent in sub-national regional agreements like the WCI. Finally, it is instructive to consider the reasons that climate-related regional agreements emerged in the first place. In my article, Regional Climate Regulation: From State Competition to State Collaboration, 1 SAN DIEGO J. CLIMATE & ENERGY L. 81 (2009), I gave three explanations for the high degree of state collaboration in climate change policy:

1) Policy diffusion: that states were creating forums for sharing and developing climate policy information;

2) Cap-and-trade efficiencies: states wanted to use a cap-and-trade approach but needed larger markets to increase efficiency and reduce leakage; and

3) The existence of a regional race to national influence: regions were essentially competing to become the model for federal legislation.

It follows that states presently have less interest in sharing information about climate policy, less interest in a cap-and-trade program, and/or less confidence that there will be federal legislation in the near future. For various (generally depressing) reasons, all three seem to be true.

- Lesley McAllister

In Case You Missed It - The Week of December 4-December 10

* Canada withdraws from the Kyoto Protocol.

* Vermont Law School releases its Top 10 Environmental Watch List for 2012.

* Iraqi veterans are finding jobs in green industries.

* An LSU mathematician helps develop marine robotic methods for studying the Gulf oil spill.

* "Climate Strategists: To Cut Emissions, Focus On Forests."

* There were at least 2,941 monthly weather records broken by extreme weather events in 2011 in the US.

* University of Georgia researchers have developed a "super-yeast" that more effectively converts pine trees into ethanol.

* Australia and New Zealand could link their respective carbon trading schemes in 2015.

* Israel desalination plant could make the country a net exporter of water.

HARVARD LAW SCHOOL SEEKING POLICY DIRECTOR FOR ENVIRONMENTAL LAW PROGRAM

Reporting to the Director of the Environmental Law and Policy Program, the Policy Director will lead the policy component of the HLS Environmental Law and Policy Program and work closely with environmental law faculty, who will determine the Program’s priorities. The Relationship between the Policy Component of the HLS Program and the existing Clinical Component will be synergistic.   

The Policy Director will:  1) Coordinate with HLS’s Emmett Law and Policy Clinic to build out clinic projects into longer term, broader research efforts aimed at producing a range of deliverables, including white papers for legislators and regulators; guides and model codes for state and local actors and journal articles and books for academic audiences and think tanks; 2) Initiate research and policy projects that, in turn, may be pursued in the Clinic; 3) Work closely with environmental law faculty in developing constructive approaches to pressing environmental issues and overcoming hurdles to effective lawmaking; and 4) Be responsible for convening programs that bring law and policymakers to Harvard for meaningful dialogue, and also for reaching out to law and policy makers to promote the research of HLS environmental faculty and students via written submissions, oral testimony, or policy papers.    

Topics to be addressed by the Policy Director will include a variety of energy/environment issues including climate change mitigation and adaptation, water resource management, environmental impacts of energy technologies (including fracking and carbon capture and sequestration), renewable energy, and energy efficiency. In certain years, some topics may achieve more attention than others, and topics of focus may expand or contract over time depending on the HLS Program’s priorities, and relevant legal and political developments. The scope of the projects (local, state, national, international) will vary, as will the intended audience for the research or policy deliverables.      

Note: this is a two year term appointment, with possibility for renewal based on funding and business need. This position is not tenure-track, and does not include teaching responsibilities. This is a professional, exempt position.  Regular work schedule is anticipated to exceed 35 hours in a work week, sometimes exceeding 50 hours including some nights and weekends    

Credentials: JD, and 8-10 years minimum experience preferably in a variety of roles in public and private sector e.g., several years at an NGO, on the Hill, US DOJ ENRD, EPA, DOI, at a think tank and/or private practice.   Bar membership required.     
A combination of experience and training in different arenas will be preferred to experience in just one. The Policy Director must be nimble and able to work well with multiple constituencies both across the university and in the public and private sectors.     Outstanding legal analytic, research and writing ability; experience convening public-private events such as workshops and conferences; ability to effectively translate and deploy student work product in public policy and legal arenas; excellent communication skills; track record as a team player.  
TO APPLY, PLEASE VISIT THE HARVARD LAW SCHOOL WEBSITE AT http://www.law.harvard.edu/about/administration/hr/careers/apply-to-job/index.html 

Hari Osofsky

The Big Picture after the Durban Climate Change Negotiations

The Durban Conference of the Parties (COP17) of the United Nations Framework Convention on Climate Change (UNFCCC) is finally over two days after talks were scheduled to conclude.  These extra two days were very productive, resulting in some good news on the big picture of treaty negotiations that needs to be contextualized in the big picture bad news for addressing emissions in the timeframe scientists say are needed.

The Good News (as reported by UNFCCC):

Parties made significant progress on the one track (everyone reduces emissions) v. two track (major developed country emitters reduce emissions) debate critical to a long-term functional agreement.  COP17 resulted in an agreement to reach a universal agreement by 2015 and established an "Ad Hoc Working Group on the Durban Platform for Enhanced Action" to begin working on this agreement immediately.  In addition, 35 governments--but unfortunately not the United States, Canada, Japan, or Russia--committed to a new Kyoto Protocol commitment period with binding commitments, which will begin in January 2013.

Beyond these big picture developments, COP17 represented progress on a number of the Cancun commitments to helping developing countries with funding through the Green Climate Fund; adaptation assistance through the Adaptation Committee; obtaining and implementing technology through the Technology Mechanism; and a registry to help developing countries get support for their mitigation actions.  In addition, it established a forum and work program to address unintended consequences of climate change actions and policies, created procedures to allow carbon capture and storage projects under the Clean Development Mechanism

The Bad News:

None of these developments put humanity on track for reducing emissions adequately in the next few years, a period that consensus climate change science says is critical to reducing the risks.  Scientists from "The Climate Action Tracker" stated, that despite these legal breakthroughs, "the agreement will not immediately affect the emissions outlook for 2020 and has postponed decisions on further emission reductions. They warned that catching up on this postponed action will be increasingly costly....The Climate Action Tracker estimates that global mean warming would reach about 3.5°C by 2100 with the current reduction proposals on the table. They are definitely insufficient to limit temperature increase to 2°C."

The Bottom Line:

These negotiations reinforce the complexities of using law to address a "super wicked" problem like climate change at the interface of law and science.  Although the progress at Durban should be commended as a step forward in the international community addressing this serious problem, the timeframe for legal action isn't matching the timeframe for needed action.  And unfortunately the time lag between emissions and impacts means that it's very hard to galvanize political will on the timframe needed.  Humanity needs these efforts at treatymaking because they are creating emissions reductions that would not have happened otherwise, but we also need to focus on the many other initiatives at multiple levels of government to try to get us closer to what scientists say is needed.

Hari Osofsky

Cross-posted at Intlawgrrls and SaltLaw Blog.

Congress's New...eh...Compostable Clothes?

Here is one to keep some of us from wearing the same "lucky" shirt over and over without end: compostable clothing. That is the new direction in which Puma hopes to take their clothing line. Puma has already committed to phasing out hazardous chemicals from it's supply chain and has replaced its energy and resource intensive shoe-box manufacturing with a reusable bag model. Puma's leader Franz Koch states that "in the near future we will be able to bring the first shoes, T-shirts and bags, that are either compostable or recyclable, to the market."

Puma, of course, is not the first to experiment with compostable clothing. As noted here:

"A Japanese microbiologist has come up with a Spud Coat, a raincoat made of bioplastic
derived from potato starch - it is 100 percent biodegradable and compostable. It even comes with a seed-bomb integrated into its fabric that will sprout a vegetable garden once the coat breaks down. At Miami Swim Week this year, Linda Loudermilk debuted a completely compostable swimsuit made from plant starch."

In the tale of "The Emperor's New Clothes," tailors design clothes that they declare are invisible to those who are unfit for their positions, hopelessly stupid, or incompetent. The Emperor "puts them on," pretending that he can see them out of fear that he will be perceived as incompetent. Dare I say we might see some members of the current Congress sporting compostable (or rapidly composting) Puma gear before too long?  

- Blake Hudson

Casitas Dismissed

For water law geeks, this week brought some big news.  On Monday, the Judge Wiese of the Court of Federal Claims dismissed Casitas Municipal Water District v. United States.  The case was arguably the highest profile water rights/takings case working its way through state or federal courts.  Now it’s over, at least until the next appeal.

Saying the case was factually and legally complex is a bit like describing War and Peace as a long book, so I’ll spare you most the details.  In essence, the Casitas was arguing that the Endangered Species Act caused a taking of its water rights.  The federal government’s first line of defense was an argument that the taking should be analyzed as a regulatory taking under the Penn Central framework.  Judge Wiese (who previously had authored Tulare Lake Water Basin Storage District v. United States, 49 Fed. Cl. 313 (2001)) accepted that argument, albeit rather grudgingly, but the Federal Circuit reversed.  That forced the United States and its allies to use several backup arguments. 

One of those arguments, which ultimately carried the day, was that Casitas had suffered no taking because the restrictions had never limited Casitas’s ability to put water to beneficial use.  Casitas’s ability to divert water had been limited, and Casitas argued that the extent of the taking should be measured by subtracting the amount of water it actually did divert from the amount it claimed it could have diverted had there been no restriction, and then multiplying that total by the value of the water.   By that method, Casitas produced a $87,300,000 takings claim, which even in the world of western water is no small sum.  The government, however, pointed out that Casitas operates a large reservoir, which had allowed it to weather the restrictions without ever limiting service to anyone.  Casitas, in other words, was asking for compensation for water its customers hadn’t even tried to put to use.  Because putting water to beneficial use is an essential element of an appropriative water right, the court held that Casitas had not yet suffered a taking, and that its claim therefore was unripe.

The government also tried a background principles/public trust defense, and that didn’t fare so well.  Without getting too far into the details (the opinion contains a more detailed discussion of California’s public trust doctrine than any published decision in decades), here’s the summary: the court held that while Casitas’ water use did adversely affect public trust resources, and while the feds had acted to protect those public trust resources, the public trust doctrine did not provide the federal government with a defense, because it wasn’t clear that the federal government’s actions were in the public interest.  Yet, interestingly, the court also stated (in an extended advisory section explaining exactly how the court would go about deciding a ripe future claim) that the California State Water Resources Control Board can invoke the public trust doctrine and change Casitas’s water rights if it pleases.

That’s intriguing.  What the court seems to be saying is that even though courts and the California State Water Resources Control Board have concurrent jurisdiction to implement the public trust doctrine, the Board has broader discretion to invoke the doctrine as a basis for environmental protection, and could even overrule the court’s application of the doctrine to this set of facts.  In a strange sense, it’s almost like Chevron or Brand X for the public trust doctrine, with the court granting an agency much broader latitude in interpreting and applying legal doctrine than the court claims for itself (at least if that excercise of discretion involves tinkering with existing water use practices).  To administrative lawyers, that may seem rather unsurprising, for most environmental law works that way.  But the public trust doctrine has traditionally been thought of as a judicially-defined doctrine, and an opportunity, as Joe Sax long ago put it, for “effective judicial intervention.”  The Court of Claims seems to have been rather uncomfortable with that approach.

If you’re interested in knowing more, I highly recommend reading the decision.  I do not agree with all of it, but I found it well written, carefully reasoned, and thorough, and I think water lawyers will be discussing it for a long time.  Also, keep an eye out for an upcoming UC Davis Law Review symposium issue on the public trust doctrine.  Several articles, including one that I’m now scrambling to update, will discuss these very issues.

-Dave Owen

The 1% and Environmental Protection

How does wealth inequality affect environmental protection?  The environmental justice movement (and related scholarship) has done a good job of elaborating one way that wealth inequality matters for environmental protection.  It has shown that environmental protection policy tends to favor wealthier and more powerful contingents of society.  Environmental justice has, however, often missed another important dimension.  As far as I know, it has not focused on whether environmental protection declines as wealth inequality increases. I suspect that this is the case, and it worries me in light of the growing inequality of the US.

First, let’s be reminded of the growing inequality.  According to a great piece by Joseph Stiglitz last May in Vanity Fair, “Of the 1%, by the 1%, for the 1%”:  "The upper 1 percent of Americans are now taking in nearly a quarter of the nation’s income every year. In terms of wealth rather than income, the top 1 percent control 40 percent… Twenty-five years ago, the corresponding figures were 12 percent and 33 percent.”

So what are the implications of the growing income and wealth inequality for the level of environmental protection?   A couple possibilities occur to me:
• As the wealthy develop private substitutes for public goods (i.e. bottled water instead of clean drinking water; gated community parks instead of public parks), less political pressure is exerted to provide public goods.
• Inequality weakens social cohesion and effective democracy, both of which are likely to favor the passage of needed environmental protection laws.

Given this and the many connections between corporate power and environmental degradation, it seems to me that there's a lot for environmental advocates to like about the Occupy Wall Street movement. 

- Lesley McAllister

Climate Change and College Football: Alabama vs. Louisiana State

This comic raises an important (ok, maybe just an interesting) question - what IF climate change threatened college football? If so, there is little doubt in my mind that folks, especially here in the South, would become very concerned very quickly about climate change. So, let's frame the debate in those terms, and use forests to do so. What is the most obvious college football match-up to use for this framing? Why, the 2012 BCS National Championship, of course, pitting the Alabama Crimson Tide (my favorite team and non-environment-related hobby) versus the Louisiana State University Tigers.

First, the Alabama Crimson Tide: 

Take these facts from the Alabama Forestry Commission on the importance of forests to the state of Alabama:

• There are 22.7 million acres of timberland in Alabama, accounting for 68% of the total land area in the state.
• Alabama has the third most timberland acreage in the 48 contiguous states, behind only Georgia and Oregon. 
• As far as private timberland acreage is concerned, Alabama ranks second behind Georgia.
• 82% of timberland acreage is owned by non-industrial private landowners.
• The forest industry is the state’s largest manufacturing industry, producing an estimated $15.39 billion worth of products in 2005.
• There are approximately 650 active forest products manufacturing operations in the state.

Now, the LSU Tigers: 

Take these facts from the Louisiana Forestry Association:

• Forests cover 14 million acres, or about 50% of Louisiana's land area, making it the greatest single land use in the state.
• Over 148,000 entities own Louisiana forests. Private non-industrial landowners own 81% of the state's forestland, forest products industries own 10% and the public owns 9%.
• In 2010, forestry accounted for 57% of the total value of all plant commodities grown in Louisiana and contributes 31% of the value of Louisiana's agricultural commodities.
• The impact of forestry and forest-products industries on the Louisiana economy in 2010 was $3.1 billion.
• Louisiana forest landowners received $396.8 million in 2010, while timber contractors and their employees earned $426.6 million.
• Forest industries are the second largest manufacturing employers in Louisiana, providing about 12,694 jobs.

So, what happens when these crucial forests are threatened? I've already posted about the value of forests in general, and about how climate change may result in shifting forest habitats across fairly rapid times scales (geologically speaking). I've also posted about a recent U.S. Forest Service report detailing the projected impacts that population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%) - this is an amount equal to the entire forest acreage in the states of Alabama or Georgia. Given that forest destruction and degradation are responsible for 20% of annual global carbon emissions, while forests concomitantly sequester one-third of carbon emissions annually, the projected loss of southeastern forests could have profound impacts on carbon emissions in the U.S. While we typically think of the developing world as the location of most forest destruction, without a change in course we will see it occur literally in our own back yards.

The pride of states like Alabama and Louisiana has a far deeper history in the natural resources available in those states than it does in storied football programs. Forests have always been a crucial part of these states economic and ecological welfare, giving rise not only to a bustling industry in forest products, but also a diverse suite of recreational activities associated with the environment, from fishing and hunting to hiking and camping. Forests also happen to be a crucial resource needed to combat climate change, in addition to providing a variety of other values such as increased air quality, watershed protection, and biodiversity. It seems clear that planting a forest, or not cutting one down, is a far more cost-effective way of sequestering carbon than placing restrictions on industrial emissions (not that the latter should not be utilized - I am only asserting that preserving natural carbon sinks is more cost effective, a key point in the current political climate). So hopefully we can think more carefully and critically about all of the cultural aspects of our forested states that are worth preserving - both college football and preservation of crucial resources like Alabama and Louisiana forests.

- Blake Hudson

In Case You Missed It - The Week of November 27-December 3

* The New York Times reported that the International Union of Pure and Applied Chemistry has proposed names for two new elements (elements 114 and 116) on the periodic table of elements, suggesting flerovium and livermorium. 

* At least 340,000 electricity customers lost power in Southern California windstorms, as reported by the LA Times.

* The New Yorker reported on hydraulic fracturing and Americans' obsession with fossil fuels, concluding, "The way things now stand, there’s nothing to prevent us from getting wasted mountains [from coal] and polluted drinking water, and a ruined climate to boot."

* The EPA released proposed new rules for criteria and toxic pollutants from industrial boilers and incinerators, as reported by Greenwire.

* LaFarge, North America Inc., "one of the largest suppliers of construction materials in the United States and Canada" according to the EPA, agreed to pay a $740,000 penalty and implement two supplemental environmental projects for unpermitted discharges of stormwater in violation of the Clean Water Act.

* St. Louis, Missouri won the EPA's National Award for Smart Growth Achievement -- Overall Excellence for its revitalization of the "Old North" historic neighborhood. 

* A new, comprehensive Tribal Consultation Policy for the Department of the Interior was announced.  Consultation issues have been the subject of recent lawsuits, such as Quechan Tribe v. U.S. Department of the Interior (S.D. Cal. 2010), in which the tribe successfully argued that the DOI had not adequately consulted with it under the National Historic Preservation Act regarding destruction of cultural resources by a planned solar farm.  

* The Department of the Interior hosted an Alaska science workshop "to discuss how to facilitate the delivery of relevant scientific information to officials responsible for making decisions related to energy development in Alaska."

As a "Backyard" Industry Fuels an Economic Transition, Who's Watching?

The Wall Street Journal reported this week that for the first time in sixty-two years, America may be a net exporter of fossil fuels.  Much of this astounding transition--although partly resulting from our economic woes, which reduce our own fuel consumption--has been driven by drilling that occurs, almost literally, in individuals' backyards. Energy companies approach mineral owners, enter into leases, and begin drilling.  (Note, though, that many states require minimum setbacks between wells and dwellings and that many wells are still in rural areas.) The oil and gas industry always has operated this way, but its uniqueness becomes increasingly apparent as technologies like hydraulic fracturing have enabled recent fossil fuel booms.  As more wells emerge, from the Fort Worth suburbs to Pennsylvania farms, some of the old English nuisance cases come to mind.  Brick kilns in the middle of residential neighborhoods, such as the kiln built by a defendant constructing his house (Bamford v. Turnley (1862)), seem to be outdated anecdotes.  But oil and gas extraction is, inherently, a backyard industrial activity.  Although it is conducted by sophisticated companies, the industry is comprised of millions of  industrial operations--some tiny, some larger (think BP)--and this leads to unique environmental and social challenges. 

A front-page article in The New York Times today reminds us of one of these complications:  the lease.  The Times has conducted a survey of surprising magnitude, which addresses more than 111,000 oil and gas leases from Texas, Pennsylvania, and a few other states. The Times notes that this is, still, a small sample, as there are millions of leases in total.  From the 111,000+ leases reviewed, it concludes that "[f]ewer than half the leases require companies to compensate landowners for water contamination after drilling begins," for example, and that "[i]n the leases, drilling companies rarely describe to landowners the potential environmental and other risks" of production.  Electronic versions of the leases are available here.  The article then suggests, based on several interviews with mineral owners, that many people may not know exactly what they're getting into when signing an oil or gas lease.  The article concedes that state law does protect lessors (and surface owners) against some potential risks.  Pennsylvania, for example, has a rebuttable presumption that water well contamination within 1,000 feet of a wellhead within six months of drilling or completing the well is caused by an oil or gas operator and requires the operator to replace contaminated supplies.  As the Times points out, though, replacement requirements may not cover some costs, such as heating the water tank to prevent it from freezing.  The Times also reports that at least one lessor was surprised to learn that oil and gas operators could simply fill in surface pits that had contained drilling wastes and then seed over them.  (State regulations for storage and disposal of drilling wastes vary significantly.  Disposal of some wastes may occur on site through burial, but states often require soil testing first, and certain wastes must be transported off site.  Regulations for site remediation also vary, and some states, as the Times briefly notes, have surface damages acts that give surface owners more control over drilling activities and their location and effects.  The common law, too, also has some protections for surface owners.) 

Beyond protections for lessors and surface owners in both leases and law, this "backyard" industrial boom also raises the question of externalities. Some lease provisions that protect the lessor may benefit neighbors, too.  A requirement that the surface be restored after drilling might protect neighbors against unsightly views, for example.  But a number of externalities--from air pollution from drilling and fracturing to potential off-site migration of surface chemical spills--may not be controlled within the lease, causing many to question whether federal and state regulations have picked up the slack.  As I've mentioned in earlier posts, the EPA is evaluating potential water quality impacts of fracturing (particularly in shales), and New York has conducted an extensive environmental review to identify restrictive conditions that will be placed on drilling and fracturing.  The Ground Water Protection Council--an association of state regulators--has argued that regulation of drilling and fracturing is adequate, while environmental groups and others support more controls.  (The GWPC, although defending existing state regulation, has contributed to new voluntary initiatives, such as FracFocus.org, which discloses chemicals used at well sites.) 

Much of the debate can be reduced to one simple fact:  We have a growing number of oil and gas wells, in some cases in areas that have not previously experienced heavy drilling.  As with any other activity, the more drilling activity there is, the more potential for effects--both for mineral and landowners and the public at large.  This may not mean that we should immediately jump to more regulation, necessarily, but we should certainly reconsider the adequacy of regulation and the areas in which it needs rapid modification.  A useful analogy might be found in other activities, which, individually considered, may have low risks.  Take driving, for example.  With one car or truck on the road, we might not be very concerned; with 254 million, we move toward increasingly detailed controls on safety and emissions. 

-Hannah Wiseman

Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?

When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.

Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?

The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).) 

Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co.,  (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).

No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)

Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.

First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.

PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.  

Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.

As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?

From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.

Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.