Environmental Law Prof Blog

Ehrlichman and the Environment

This upcoming year, I intend to blog periodically about the political players that oversaw the birth of environmental law in the 1970s.  

John Ehrlichman is mainly remembered for his participation in the Watergate break in.  Of course, Watergate was a political scandal of a generation, and landed Ehrlichman in prison after he was forced from the White House.  

While it is rarely a matter of focus, it should be noted that Ehrlichman had a great hand in much of the environmental legislation that was passed during Nixon's time in the White House.  He served as Assistant to the President for Domestic Affairs under President, and environmental law found its home in Domestic Affairs.  

While much more could be said about the specific contributions Ehrlichman made, for now, I would just like to make the observation that Nixon's attention to environmental law in many ways can be traced to Ehrlichman's attention to the matter.  While he was a much maligned public figure, some of what he did in the White House could rightly be described as meaningful public service.  

Ehrlichman is a complicated figure.  And, as with most people, a quick inspection of his life often leaves out important details.  

-- Brigham Daniels

My European Carbon Footprint

At this nifty website, the per capita carbon footprints of different countries can be compared. It shows that the carbon footprint of the average American (that is, a resident of the USA) is about two-and-a-half times larger than the carbon footprint of the average Spaniard.  As a visiting professor in Granada, Spain, I am experiencing this difference first-hand. I have rented a 3 bedroom/ 2 bath apartment in the center of the city.  It is one of the nicer apartments I saw during a week of apartment hunting – not luxurious but comfortable and relatively well-equipped.  Unlike several others I looked at, it has a dishwasher, a central heating system, and an air-conditioning unit in the living room. But consider what it doesn’t have:

- an elevator (and I’m on the fifth floor!)
- a bathtub
- much space (there are about 800 or 900 sq.ft.)
- a hot-water feed to the washing machine
- a clothes dryer

Also, there is no garage, and street parking is very hard to come by. On the other hand, consider the services I have within three blocks of my apartment (and this isn't even a complete tally): a grocery store; two bread and pastry shops; two fruit and veggie stores; a wine and cheese shop; a frozen foods specialty store; at least ten restaurants; a bank; a hotel; a health clinic; a pharmacy; a taxi stand; an elementary school; a school supplies store; and a public square with a playground.  See the pics below taken from my porch, with the well-constructed clothesline front and center!

What a change from SoCal!

- Lesley McAllister

 

In Case You Missed It - Week of January 22-28

* President Obama's State of the Union Address and reactions to it involved significant discussion of energy and transition to cleaner sources.

* As environmental concerns continue to rise about the recent cruise ship accident off the coast of Italy while rough seas delayed fuel pumping from the ship, two shipping companies are sentenced in district court in Baltimore for enviromental crimes and obstruction of justice.

* British scientists reported that an expanding large pool of fresh water in the Arctic Ocean could decrease temperatures in Europe if winds shift and cause it to enter the North Atlantic.

* The Federal Energy Regulatory Commission (FERC) issued its first pilot project license for a tidal energy project located in New York City’s East River.

* Houston became the latest city to join the Department of Energy's Better Buildings Challenge, which aims to increase energy efficiency 20 percent by 2020 in commercial, government, and school buildings across the country.

* The Southern Environmental Law Center released its 2012 Top 10 Endangered Places in the Southeast.

Climate Change Adaptation - Where the Academy Meets the Real World

State-level climate change adaptation is “on the radar” in Hawai‘i, and like many other academic institutions working in other jurisdictions, the University of Hawai‘i has something to do with it.

Last week, Hawai‘i State Representative Cynthia Thielen introduced House Bill 2330 to the Hawai‘i Legislature proposing that the State Office of Planning and county planning and permitting departments begin preparing for a 1-foot-by-2050 sea-level rise.  This measure, if enacted, would constitute Hawai‘i’s first comprehensive state-level sea-level rise adaptation policy.  Click here for local news coverage.

The University of Hawaii's Center for Island Climate Adaptation and Policy (“ICAP”) recommended a similar statewide planning benchmark (1-foot-by-2050 and 3-feet-by-2100) in its recently released paper, Sea-Level Rise and Coastal Land Use in Hawai‘i:  A Policy Tool Kit for State and Local Governments.  The paper also identifies twenty-four planning, regulatory, spending, and market-based policy tools that state and local decision-makers could use to build resiliency and reduce vulnerability to sea-level rise in Hawai‘i, and perhaps elsewhere.  The tool kit is an adaptation of the Georgetown Climate Center’s Adaptation Tool Kit:  Sea-Level Rise and Coastal Land Use, How Governments Can Use Land Use to Adapt to Sea-Level Rise, released in October 2011, which served as a valuable resource and model. 

The larger study’s three major phases — research, writing, and outreach over the 2011 calendar year — have involved extensive stakeholder engagement through workshops, individual interviews, and peer review.  Through this process, ICAP has strived to fill gaps between science, academia, policy-making, and implementation to ensure that its policy recommendations are well informed, useful, and attentive to community needs.

Concurrently, the Hawai‘i State Office of Planning is proposing legislation this session that would incorporate a climate change priority guideline into the State Plan.  The guideline would address climate change impacts on a variety of sectors including agriculture, coastal and near shore marine areas, water resources, education, energy, health, and the economy. 

 And, last November, the Hawai‘i Department of Land and Natural Resources released The Rain Follows the Forest, an action plan for replenishing Hawai‘i’s watersheds with an eye to increasing fresh water resilience in the face of drier conditions in the future due to climate change.  ICAP will release a policy study specifically focused on climate change and fresh water resources in the upcoming months.

ICAP is part of a trend worth watching in which scientists, legal scholars, and planners are working together across sectors to make climate adaptation policy a reality in state houses and county councils across the country. Whether decision-makers act on these recommendations will shape our quality of life in years and decades to come.

- Maxine Burkett

Job Openings

There are a variety of recently announced job openings that may be of interest:

• Executive Director of the Rocky Mountain Mineral Law Foundation


• Visiting Assistant Professor - UH Energy Law Scholar - Non-Tenure-Track at the University of Houston


• Visiting professor in environmental / natural resources / land / energy law at Texas Tech

• Regional Director, Gulf and South Atlantic Oceans, at Environmental Defense Fund

-Lincoln Davies

Electric Power in a Carbon Constrained World

There are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:

• The Role of Coal-Fired Electric Power Generation (John Dernbach, James Holtkamp, Arnold Reitze)

• Natural Gas: Will It Be the Fuel of Choice for Electric Power Generation? (Bruce Pendery, Richard Pierce, Hannah Wiseman)

• Electric Power from Alternative Energy (Lincoln Davies, Steven Ferrey, Alexandra Klass)

• Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)

Registration is available here. If you cannot attend in person, the program will also be streamed live here.

-Lincoln Davies

Local Environmental Law: Imposed Versus Proposed Exactions

Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.

Several outstanding questions as to the applicability of this stringent standard continue to cloud governments’ use of the exactions tool. The Florida Supreme Court recently addressed two such questions in the matter of St. John’s River Water Management District v. Koontz. The first question—whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands—has been the subject of considerable debate in takings literature. The Florida Court answered this question in the negative, siding with a considerable majority of state and lower federal courts that have addressed the issue. The Court’s reasoning on this issue could serve as fodder for a future post. But the second question—whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed—has received far less attention to date and will serve as the subject here.

In Koontz, a permit applicant sought to dredge and fill wetlands that were part of a designated riparian habitat protection zone. While the Water Management District could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by the applicant, could allow for the development to proceed. The applicant, however, refused these proposals, and the government ultimately denied the development request outright. At the appellate level, the developer prevailed on the theory that the government had proposed exactions that amounted to an unconstitutional taking for which compensation is due.

Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion, one federal circuit court opinion, and in a decade-old dissent from a denial of certiorari authored by Justice Scalia—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. And across these three cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.

The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test. (Takings buffs may be interested to hear that the author of the majority opinion in Koontz—Justice R. Fred Lewis—authored a scathing dissent to the lower court opinion that was later affirmed by a unanimous U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot. in 2010.) However, it is somewhat surprising that the Court did little to confront the rationale set out in any of the three preceding cases on the topic. It is even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”

One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction.

However, there are at least three reasons to suggest that such an approach may amount to an over-simplification of, and an ultimately unsound resolution to, what is in fact a complicated theoretical problem. First, where a proposed exaction is refused or withdrawn, nothing has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies. Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during negotiation sessions will place a chilling effect on regulator-landowner coordination.

If you are interested in this topic, I expound on the above ideas in this pre-Koontz article. In addition, Mark Fenster (Florida) and David Callies (Hawaii) are publishing post-Koontz symposium essays on the topic, drafts of which are posted here and here.

The Florida Supreme Court recently denied Koontz’s motion for re-consideration, leaving him until April 3, 2012 to decide whether to file a petition for certiorari with the U.S. Supreme Court. Stay tuned to the Environmental Law Professors Blog for any developments in this important case.

-Tim Mulvaney ([email protected])

President Obama's State of the Union Address, Energy, and Climate Change

Last night, President Obama delivered his annual State of the Union Address.  Like last year, he focused on the potential for unity over energy independence, transition to cleaner energy, and energy infrastructure rather than on addressing climate change. He continued to tie that transition to innovation, construction, and jobs. 

However, the tone was somewhat different.  Unlike last year, where he did not mention climate change directly, he openly acknowledged partisan divisions with respect to climate change and even energy while trying to find bipartisan ground.  The President also spent time discussing the expansion of offshore drilling and natural gas as positive rather than just emphasizing the need to shift towards cleaner sources.

I liked the realism of this shift.  One of the reasons I spent time in the aftermath of the BP Deepwater Horizon oill spill exploring the complexity of offshore drilling and oil spill regulation, and principles for moving forward and addressing environmental justice concerns, is because I believe that the desire for energy independence and security will compell us to keep drilling deep in at least the short-to-medium term.  Similarly, I think that natural gas is an important transitional energy source because we are not ready to shift dramatically to cleaner sources in the near term.

I do think it's important, though, to think beyond our present constraints.  I live in the Midwest, with its massive wind capacity, and was particularly heartened by two experiences I had during my Climate Change and Clean Energy capstone course last semeseter.  First, when John Dunlop of the American Wind Energy Association visited us, he emphasized that between on-shore and off-shore wind, we have capacity to more than meet our energy needs and that intermittency is more managable than it is often portrated as being.  Second, when we went on a tour of the MISO, the Midwestern regional transmission organization, the operator answering our questions emphasized that they try to get as much wind online as possible.  This effort is not motivated by any type of environmental mandate, but out of their mission of reducing cost and maximizing reliability--the wind is cheaper than the more polluting sources.  I hope that we can move beyond bipartisanship to use law as a tool for the energy transformation--through a combination of conservation, efficiency, and transitioning sources--that would be a win-win for this country.

I include the most relevant portion of the State of the Union below:

After all, innovation is what America has always been about.  Most new jobs are created in start-ups and small businesses.  So let’s pass an agenda that helps them succeed.  Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow.  (Applause.)  Expand tax relief to small businesses that are raising wages and creating good jobs.  Both parties agree on these ideas.  So put them in a bill, and get it on my desk this year.  (Applause.)

Innovation also demands basic research.  Today, the discoveries taking place in our federally financed labs and universities could lead to new treatments that kill cancer cells but leave healthy ones untouched.  New lightweight vests for cops and soldiers that can stop any bullet.  Don’t gut these investments in our budget.  Don’t let other countries win the race for the future.  Support the same kind of research and innovation that led to the computer chip and the Internet; to new American jobs and new American industries.

And nowhere is the promise of innovation greater than in American-made energy.  Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources.  (Applause.)  Right now -- right now -- American oil production is the highest that it’s been in eight years.  That’s right -- eight years.  Not only that -- last year, we relied less on foreign oil than in any of the past 16 years.  (Applause.)

But with only 2 percent of the world’s oil reserves, oil isn’t enough.  This country needs an all-out, all-of-the-above strategy that develops every available source of American energy.  (Applause.)  A strategy that’s cleaner, cheaper, and full of new jobs.

We have a supply of natural gas that can last America nearly 100 years.  (Applause.)  And my administration will take every possible action to safely develop this energy.  Experts believe this will support more than 600,000 jobs by the end of the decade.  And I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use.  (Applause.)  Because America will develop this resource without putting the health and safety of our citizens at risk.

The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy.  (Applause.)  And by the way, it was public research dollars, over the course of 30 years, that helped develop the technologies to extract all this natural gas out of shale rock –- reminding us that government support is critical in helping businesses get new energy ideas off the ground.  (Applause.)          

Now, what’s true for natural gas is just as true for clean energy.  In three years, our partnership with the private sector has already positioned America to be the world’s leading manufacturer of high-tech batteries.  Because of federal investments, renewable energy use has nearly doubled, and thousands of Americans have jobs because of it. 

When Bryan Ritterby was laid off from his job making furniture, he said he worried that at 55, no one would give him a second chance.  But he found work at Energetx, a wind turbine manufacturer in Michigan.  Before the recession, the factory only made luxury yachts.  Today, it’s hiring workers like Bryan, who said, “I’m proud to be working in the industry of the future.”

Our experience with shale gas, our experience with natural gas, shows us that the payoffs on these public investments don’t always come right away.  Some technologies don’t pan out; some companies fail.  But I will not walk away from the promise of clean energy.  I will not walk away from workers like Bryan.  (Applause.)  I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here. 

We’ve subsidized oil companies for a century.  That’s long enough.  (Applause.)  It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising.  Pass clean energy tax credits.  Create these jobs.  (Applause.)

We can also spur energy innovation with new incentives.  The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change.  But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation.  So far, you haven’t acted.  Well, tonight, I will.  I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes.  And I’m proud to announce that the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history -– with the Navy purchasing enough capacity to power a quarter of a million homes a year.  (Applause.) 

Of course, the easiest way to save money is to waste less energy.  So here’s a proposal:  Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings.  Their energy bills will be $100 billion lower over the next decade, and America will have less pollution, more manufacturing, more jobs for construction workers who need them.  Send me a bill that creates these jobs.  (Applause.)  

Building this new energy future should be just one part of a broader agenda to repair America’s infrastructure.  So much of America needs to be rebuilt.  We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.

Hari Osofsky

Cross-posted on IntlawGrrls and SaltLaw Blog.

After all, innovation is what America has always been about.  Most new jobs are created in start-ups and small businesses.  So let’s pass an agenda that helps them succeed.  Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow.  (Applause.)  Expand tax relief to small businesses that are raising wages and creating good jobs.  Both parties agree on these ideas.  So put them in a bill, and get it on my desk this year.  (Applause.)

Innovation also demands basic research.  Today, the discoveries taking place in our federally financed labs and universities could lead to new treatments that kill cancer cells but leave healthy ones untouched.  New lightweight vests for cops and soldiers that can stop any bullet.  Don’t gut these investments in our budget.  Don’t let other countries win the race for the future.  Support the same kind of research and innovation that led to the computer chip and the Internet; to new American jobs and new American industries.

And nowhere is the promise of innovation greater than in American-made energy.  Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources.  (Applause.)  Right now -- right now -- American oil production is the highest that it’s been in eight years.  That’s right -- eight years.  Not only that -- last year, we relied less on foreign oil than in any of the past 16 years.  (Applause.)

But with only 2 percent of the world’s oil reserves, oil isn’t enough.  This country needs an all-out, all-of-the-above strategy that develops every available source of American energy.  (Applause.)  A strategy that’s cleaner, cheaper, and full of new jobs.

We have a supply of natural gas that can last America nearly 100 years.  (Applause.)  And my administration will take every possible action to safely develop this energy.  Experts believe this will support more than 600,000 jobs by the end of the decade.  And I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use.  (Applause.)  Because America will develop this resource without putting the health and safety of our citizens at risk.

The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy.  (Applause.)  And by the way, it was public research dollars, over the course of 30 years, that helped develop the technologies to extract all this natural gas out of shale rock –- reminding us that government support is critical in helping businesses get new energy ideas off the ground.  (Applause.)          

Now, what’s true for natural gas is just as true for clean energy.  In three years, our partnership with the private sector has already positioned America to be the world’s leading manufacturer of high-tech batteries.  Because of federal investments, renewable energy use has nearly doubled, and thousands of Americans have jobs because of it. 

When Bryan Ritterby was laid off from his job making furniture, he said he worried that at 55, no one would give him a second chance.  But he found work at Energetx, a wind turbine manufacturer in Michigan.  Before the recession, the factory only made luxury yachts.  Today, it’s hiring workers like Bryan, who said, “I’m proud to be working in the industry of the future.”

Our experience with shale gas, our experience with natural gas, shows us that the payoffs on these public investments don’t always come right away.  Some technologies don’t pan out; some companies fail.  But I will not walk away from the promise of clean energy.  I will not walk away from workers like Bryan.  (Applause.)  I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here. 

We’ve subsidized oil companies for a century.  That’s long enough.  (Applause.)  It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising.  Pass clean energy tax credits.  Create these jobs.  (Applause.)

We can also spur energy innovation with new incentives.  The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change.  But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation.  So far, you haven’t acted.  Well, tonight, I will.  I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes.  And I’m proud to announce that the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history -– with the Navy purchasing enough capacity to power a quarter of a million homes a year.  (Applause.) 

Of course, the easiest way to save money is to waste less energy.  So here’s a proposal:  Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings.  Their energy bills will be $100 billion lower over the next decade, and America will have less pollution, more manufacturing, more jobs for construction workers who need them.  Send me a bill that creates these jobs.  (Applause.)  

Building this new energy future should be just one part of a broader agenda to repair America’s infrastructure.  So much of America needs to be rebuilt.  We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.

On a lighter note

With the start of the semester, time for doing "things" like taking an evening out for watching a movie has dwindled. However, just before the holiday season provided ample opportunity to watch movies. It was while watching the trailer for one movie that I realized how the pursuit of environmental law can forever change one's ability to enjoy the mundane. So, here I was watching the trailer for Salmon Fishing in Yemen, with all the romantic cliches, but all I could think of was the environmental impact of introducing a non-native species in a country like Yemen. It also actually made me go and look up the geography and climate of Yemen, which I learnt had mostly desert-like conditions, without any major rivers. Having potentially spoilt your enjoyment of this movie, let me end on a positive note by quoting the Yemenese investor in the movie"...one must have faith..."

Deepa Badrinarayana

The Nuclear Conundrum

It has been nearly one year since a massive tsunami and earthquake shook Japan's nuclear plants. Up until that point nations seriously considered nuclear energy as a good alternative to meet growing energy demands and reduce GHG emissions. Government response to the incident, however, are varied. European nations, particularly Germany, which was planning to expand the life of some its plants has withdrawn such plans.China and India have no plans to scale back on their nuclear expansion program.India is slated to open one of its largest nuclear power plants in Kudankulum, Tamil Nadu, even though locals (and the Chief Minister of Tamil Nadu) are demanding proper explanation of safety checks from the Prime Minister. An news report (interview) of the issue can be found here. Similarly, in the United States, efforts to cut back on nuclear energy power remain contentious. On January 20, a Vermont District Court judge enjoined the State of Vermont from taking any action to shut down the Vermont Yankee nuclear power plant, after a State Senate vote against renewal of operations at the plant due to safety concerns was challenged. The court found that the Atomic Energy Act preempted State action. A copy of the decision can be found here .

For countries that want to pursue nuclear energy options, the motivation is economic growth. Even Germany, which has scaled back on nuclear energy, is faced with challenges of meeting its energy demands and there are reports that economic slow down in Germany coincides with its new nuclear policy. For countries such as China, India, and the United States, economic concerns govern their decision. Without a comprehensive nuclear safety policy globally, eventual nuclear power expansion appears imminent. What is required then is a close examination of nuclear energy laws, particularly in light of Japan's experience with continuing food contamination and a persisting dissatisfaction with government accountability. It is perhaps time to seriously consider, or reconsider, nuclear safety regulation.

Deepa Badrinarayana

Inaugural Issue of the LSU Journal of Energy Law and Resources - Call for Papers

The LSU Law Center recently announced a new student-edited journal, the LSU Journal of Energy Law and Resources. Below please see a short description of the journal. You can learn more about the journal by visiting their website.

The LSU Journal of Energy Law and Resources will explore energy law from a holistic point of view, including the resources used for energy development, changes in technology, and the transactional effects of energy development, both in the United States and abroad. Specifically, the Journal will discuss underdeveloped areas of energy law, such as issues of property, contract, and taxation. By publishing on these topics, the Journal will not only open a channel for areas of scholarship traditionally underdeveloped, it will simultaneously provide practitioners an effective resource in energy law. In addition to providing full length scholarly articles, the Journal will maintain a blog of shorter pieces regarding changes or developments in energy law.

Currently, the LSU Journal of Energy Law and Resources is seeking article submissions for the Journal’s inaugural issue to be published in the Fall of 2012. The Journal welcomes academic articles from both scholars and practitioners.

- Blake Hudson

Villanova Environmental Law Journal Annual Symposium - Experts Examine New Fuel Economy Standards

EVENT ANNOUNCEMENT

Villanova Environmental Law Journal Annual Blank Rome LLP Symposium Feb. 11

Experts Examine New Fuel Economy Standards

WHAT:

The U.S. Department of Transportation, the Environmental Protection Agency and the White House recently announced an historic agreement with auto manufacturers that proposes to dramatically increase fuel efficiency for cars and light trucks, and a separate proposal for the first-ever regulations setting fuel efficiency standards for heavy-duty trucks. The new standards will save billions of barrels of oil and reduce greenhouse gas emissions by millions of tons. The collaborative effort behind these significant breakthroughs stands in marked contrast to the divisiveness and gridlock that currently mires much environmental policy. 

This year’s Villanova Environmental Law Journal Blank Rome LLP Symposium brings together key stakeholders and decision makers who were involved in crafting the new standards to discuss the law and politics of fuel efficiency. The speakers will explain the process that produced the groundbreaking new fuel efficiency standards, evaluate the factors contributing to the agreement between government and industry and examine the technical, legal, economic and political implications of the new standards.

To register, visit www.law.villanova.edu/events. This program is approved by the Pennsylvania Continuing Legal Education Board for 3 substantive CLE credits. Program registrants who are unable to afford continuing legal course registration fees due to financial hardship may petition for registration fee waiver or discounted program fees. For additional information on the symposium, the general public can email Megan Jacobs at [email protected].

WHO:                    

Gina McCarthy, Assistant Administrator for the Office of Air and Radiation, U.S. Environmental Protection Agency

Michael Robinson VSL '84, Vice President for Sustainability and Global Regulatory Affairs, General Motors

Jody Freeman, Archibald Cox Professor of Law, Harvard Law School

Roland Hwang, Transportation Program Director, Natural Resources Defense Council

Todd Aagaard (Moderator), Associate Professor of Law, Villanova University School of Law

WHEN:                  

Saturday, February 11, 2012

8:15 a.m. to 9:00 a.m. – Registration

9:00 a.m. to 12:30 p.m. – Symposium

WHERE:                 

Villanova University School of Law, Room 101

299 North Spring Mill Road, Villanova, Pennsylvania

The Villanova Environmental Law Journal’s annual symposium is named for Blank Rome LLP in recognition of its generous support of Villanova University School of Law.

Media Contact: Kate Johnston, Assistant Director of Media Relations, [email protected], 610-519-8333 

In Case You Missed It - Week of January 15-21

* Does Congress have the authority to approve the Keystone Pipeline despite the Obama administration's disapproval? A new CRS report says yes - under Congressional authority to regulate foreign commerce.

* Four Florida counties have decided to join forces to combat climate change.

* "Salazar Announces Ban on Importation and Interstate Transportation of Four Giant Snakes that Threaten Everglades."

* Asia Pulp and Paper comes under increasing scrutiny for deforesting Indonesia: Levi's drops APP as a supplier.

* A new species of horsefly is named "Scaptia (Plinthina) beyonceae" (after Beyonce) due to its golden backside.

* The state of Louisiana announces an ambitious plan to curb coastal land loss.

* GE executive declares at global investor conference that trade-off between economy and the environment is "nonsense."

* The state of Oregon decides to take zoning to the ocean.

New Editors!

Starting next week, a new set of editors will be joining this blog. Their work spans a broad range of environmental law topics, and we think you'll enjoy reading what they have to say. Here's a quick introduction:

Deepa Badrinarayana is an associate professor at Chapman Law School, where she teaches courses in international and environmental law. She writes about international and Indian environmental law, with a focus on climate change. Deepa is also a consultant to the United Nations Global Compact on issues of corporate voluntarism and regulations. Before coming to the United States, Professor Badrinarayana was a Research Officer for a Government of India-World Bank Environmental Capacity-Building Project, at the National Law School of India University. In addition to research and advocacy, she also trained government officials and legal professionals in environmental law. She is also a Member of the World Conservation Union, Committee on Environmental Law.

Maxine Burkett is an Associate Professor of Law at the William S. Richardson School of Law, University of Hawai‘i and serves as the inaugural Director of the Center for Island Climate Adaptation and Policy (ICAP), at the University of Hawai‘i Sea Grant College Program. Professor Burkett’s courses include Climate Change Law and Policy, Torts, Environmental Law, Race and American Law, and International Development. She has written in the area of Race, Reparations, and Environmental Justice. Currently, her work focuses on "Climate Justice," writing on the disparate impact of climate change on vulnerable communities, in the United States and globally. As the Director of ICAP, she leads projects to address climate change law, policy, and planning for island communities in Hawai‘i, the Pacific region, and beyond. Professor Burkett is from the island of Jamaica, and now she and her husband raise their two young children on the island of O‘ahu, Hawai‘i.

Keith Hirokawa is an associate professor at Albany Law School. He teaches property, land use, and environmental law courses (one of which we've previously covered here), and he writes on subjects at the intersection of land use and environmental law, with particular attention to ecosystem services and issues of urban sustainability. In his spare time, he plays in the snow with his two sons.

Emily Hammond Meazell’s scholarly work focuses on issues of scientific uncertainty and legitimacy, especially in administrative, environmental, and energy law. A former civil engineer, she practiced in the environmental and water resources fields before attending law school. She is currently Associate Dean for Academic Affairs at the University of Oklahoma College of Law, where she teaches administrative law, energy law, torts, and risk, public policy and law. She will be joining the faculty at Wake Forest University School of Law in the summer of 2012.

Tim Mulvaney is an Associate Professor of Law at Texas Wesleyan University School of Law in Fort Worth, TX. Prior to entering academia, he served in the Attorney General’s Office of his home state of New Jersey, where he represented the state’s Department of Environmental Protection and its then-Commissioner (and current EPA Administrator) Lisa Jackson. Tim’s most recent scholarship focuses on the constitutional takings barriers that constrain the government’s ability to attach conditions to development permits in an effort to mitigate local environmental and infrastructural impacts. He teaches courses in environmental, natural resources, land use, and property law, as well as a seminar entitled “Constitutional Issues in Environmental Law.”

Deepa, Maxine, Keith, Emily, and Tim all will be joining as blog editors, which means they'll be posting every other week. Additionally, Erin Ryan will be joining us as a contributing editor, and will be posting on a more occasional basis. Here's a short version of her bio:

Professor Erin Ryan teaches natural resources and environmental law, property and land use law, negotiation, and federalism. She began her teaching career at UC-Hastings College of the Law and then joined the full-time faculty at William & Mary. In 2011, she was awarded a Fulbright to study environmental governance in China, where she is currently teaching at Ocean University and lecturing about environmental law at Chinese universities nationwide. In 2011, she also joined the faculty at Lewis & Clark Law School, where she will begin teaching upon her return from China in 2012. Prior to law school, Ryan served as a U.S. Forest Service ranger on the Mono Lake District of the Inyo National Forest (the Mono Basin National Forest Scenic Area), east of Yosemite National Park. She graduated from Harvard College with a degree in East Asian Languages and Civilizations and received a Master’s degree in Ethnomusicology from Wesleyan University. In her spare time, she collects moments with her three year-old son, Dylan.

Brigham Daniels and Hannah Wiseman also will be switching to contributing editor status, while Lincoln Daniels, Blake Hudson, Lesley McAllister, Hari Osofsky, Dave Owen will remain as editors.

We hope you enjoy the new voices.

- The Editors

Putting the "Natural" Ecosystem Back in the South

The Natural Resources Law & Policy book that I use challenges the class to consider "what is natural?" before embarking on the course. Is it "natural" to allow the Florida Panther population to genetically bottleneck and die out, or is it "natural" for humans to intervene and introduce related subspecies of western mountain lions into the Florida population to raise genetic diversity and save some semblance of the species? Is it "natural" to put handrails in the mountains to allow people to access and experience nature directly, or is it "natural" to leave human constructs out of nature even if few can visit those locations? I could go on and on. But I do like to relay to my students one of my personal experiences with this question. The forestland I grew up on in south Alabama is about 75% monoculture pine and 25% beautiful hardwood. I always loved the hardwood portion of the property, because it seemed to me to be so much more diverse - with a wide array of tree and plant species, a distinct "forest" smell, more contrasting colors, etc. You can see the transition from our hardwood to our pine portion of land in this picture:

I would hear stories from my mother about how the entire acreage once looked like the hardwood portion, until the forest companies my grandfather leased the land to came in and clearcut the hardwood to plant monoculture pine. To me the hardwood portion was "natural," and man had replaced it with a quite unnatural, boring (to me at the time) "farm" of trees. Only later did I learn that my conception of what was "natural" for a southeastern forest was quite wrong.

Only when man began suppressing fire on large scales did the hardwoods creep out of the watersheds, soggy bottoms, and hollows and into the upland areas. Indeed, nearly the entire southeast historically looked far more like the pine forest in the right portion of the image above, as it was almost entirely covered by the longleaf pine ecosystem (see image at the top of the post). Here is a prototypical longleaf stand: 

The longleaf ecosystem has been reduced by 97% due to urbanization and development as well as forestry practices. Even so, consider these facts (found here):

• The ecosystem contains 29 threatened and endangered species (including the gopher tortoise and the red-cockaded woodpecker).
• Almost 900 plant species are found only in longleaf pine forests.
• There are as many as 40 to 50 different plant species in one square meter of longleaf forest.
• 170 of the 290 reptile and amphibian species found in the Southeast live in the longleaf ecosystem.

Given the importance of the ecosystem, the Conservation Fund joined more than 20 nonprofits and government agencies to embark on "America's Longleaf Initiative," which aims to triple the amount of longleaf pine ecosystem in its historic range from 3.4 to 8 million acres. We often focus on endangered and threatened species, but I think we tend to forget that entire ecosystems are imperiled (ecosystems that themselves are home to numerous endangered and threatened species). With only 3% of the longleaf pine ecosystem left, I can only hope that these restoration efforts can succeed in putting the "natural" ecosystem back in the South - I now find it quite beautiful.

- Blake Hudson

In Case You Missed It - Week of January 8-14

• The White House proposed moving the National Atmospheric and Oceanic Administration into the Department of the Interior.


• A new study has offered a possible explanation of why the oil leaking from the Deepwater Horizon disaster dissipated so quickly.   


• President Obama announced a National Ocean Policy action plan.  


• The Supreme Court heard oral argument in the wetlands / property rights case, Sackett v. EPA. 


• The NRC argued to the D.C. Circuit that Congressional funding cuts forced it to halt review of the proposed Yucca Mountain high-level nuclear waste storage facility.  


• Representatives of the Nuclear Energy Institute, the nuclear industry’s trade organization, proposed voluntary safeguards for U.S. plants to address some of the hazards exposed by last year’s explosion at Fukushima Daiichi.  


• Interior announced a ban on new mining near the Grand Canyon for the next 20 years. 

ABA's 41st Annual Conference on Environmental Law

The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City.  If you have not been before, this is one of, if not the, premier environmental law conferences in the nation.  (If the weather turns right, there could also be really great skiing.)  The conference used to be known as the "Keystone Conference."

As usual, there is a fantastic line-up.  Just a few samples include:

• Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions


• Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption


• Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal


• Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion

Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).

To register, go to the conference website.

-Lincoln Davies

These Are the Emitters in Your Neighborhood

EPA just released a new interactive web-based map showing the locations of major greenhouse gas emitters across the country.  It's well worth checking out.  You could easily fritter away half an hour playing with it.

- Dave Owen

Gearing Up for Spring Environmentally-Oriented Conferences--Calls for Papers

One of the things I found daunting at first in the academy was figuring out to get to speak at conferences.  I at first assumed that I just had to wait for invitations, and was a little sad when few were forthcoming.  It took me a couple years to realize that for most major conferences, there are calls for presenters and that you get on the program by submitting.  (Yes, I realize that I'm one of the most naturally naive folks around.) 

To that end, I'd like to highlight calls for papers for conferences with some connection to environmental topics.  As the two conferences I'm highlighting in order of their due dates below indicate, I'm thinking broadly about what that means and encourage readers to do so as well.  Please send others my way and I'll make sure to get them up. 

1. Association for Law, Property, and Society, Georgetown University Law Center

Deadline to Submit January 20, 2012

Conference Date: March 2-3, 2012

As the President-Elect of this group, I particularly want to encourage environmental and junior/pre-market folks to feel welcome.  This is an exciting, interdiscplinary group that will provide opportunities for feedback on work, organizational involvement, mentoring, and publication.  There are always a number of environmental law and land use panels.  You can register with or without a paper to present (early stage ideas are welcome), and we'll try to find moderating opportunities for those who don't feel ready to present.  A full description of the conference and submission/registration procedures can be found through the link above.  Feel free to email me at [email protected] for more information.

2. Beyond Jurisdiction: Wetlands Policy for the Next Generation, SUNY Buffalo Law School

Deadline to Submit: February 13, 2012

Conference Date: April 26-27, 2012

This conference will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). They welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including: mitigation, tulloch/discharge issues, ecosystem services, state and local government, enforcement, permit processes (nationwide and regional), Clean Air Act administration, and international and transnational protections. Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words at the link above.  For more information, contact Kim Diana Connolly at [email protected] or 716-645-2092

Hari Osofsky

Sabbatical in Spain!

Greetings from Spain!  I am here as a Fulbright scholar at the University of Granada Law School through June.  Do you have a sabbatical coming up?  Would you like to spend it abroad?  The U.S. Fulbright Scholar Program sends about 1,000 faculty and professionals from the US to over 150 countries each year.  Applications are due each year in early August; you find out if you are a finalist by November or so; and you find out if you will receive a grant by February or March.  The grant can then be used the following school year.  In other words, you have to apply about a year ahead.  The availability and terms of grants vary country-by-country, and in the application process you choose the country you want to apply to.  Complete information is here.  Especially check out the Catalog of Awards that gives specific information about the available grants.

- Lesley McAllister