Environmental Law Prof Blog

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

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

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

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

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

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

Nuclear in the News

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

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


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


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


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


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


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

-Lincoln Davies

I wish I could have taken that class...

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

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

- Dave Owen

Political Risks Associated with Bashing Climate Change Science

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

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

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

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

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

-- Brigham Daniels

Michele Bachmann on Climate Change

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

  

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

- Lesley McAllister

 

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

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

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

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

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

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

- Blake Hudson

ABSTRACT:

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

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

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

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

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

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

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

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

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

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