Environmental Law Prof Blog

Ecosystem Services in Federal Guidance

On October 5, 2009, President Obama issued Executive Order 13514, which provides a unique opportunity for Federal agencies and facilities to improve sustainability across their operations. Among other things, Executive Order 13514 calls for the implementation of sustainable construction practices in federal buildings, as well as water conservation and pollution prevention in the operation of federal facilities.  Since that time, several federal agencies have developed guidance to assist in achieving sustainability in governmental operations, from greening the federal fleets to encouraging cycling opportunities. 

In furtherance of Executive Order 13514, on October 31, 2011 the Council on Environmental Quality (“CEQ”) issued Guidance for Federal Agencies on Sustainable Practices for Designed Landscapes (“Guidance”) for the following purposes:

The recommendations in this document describe goals and strategies to achieve sustainable outcomes rather than specifying prescriptive solutions and technology. They are intended to inspire flexibility, innovation, and a culture change. They apply equally to new construction, major renovations, and existing sites and to a lesser extent alterations to existing small scale landscaping efforts. The recommendations accommodate regional differences and can be adapted to support diverse agency missions and policies.

The Guidance addresses the reduction of impacts to soils, water, vegetation, human well-being, and cultural landscapes from facilities construction, operations, and maintenance.  CEQ sought the assistance of the United State Botanic Garden (and others) due to their experience in developing the innovative Sustainable Sites Initiative. 

The significance of the Guidance might be measured in terms of federal assets, which include more than 41 million acres of land and 3.34 billion square feet of building space in the United States.   Perhaps more notable, however, is the effort to “inspire flexibility, innovation, and a culture change” by integrating ecosystem services values into the proposed decision making framework.   This, I imagine, is intended to heed Gretchen Daily’s observation: “Unless humanity is suicidal, it should want to preserve, at a minimum, the natural life-support systems and processes required to sustain its own existence.”

- Keith Hirokawa

The Latest Legal Development in Spain's Renewable Energy Sector

Over the past five years, Spain has been a story of renewable energy boom and bust.  Spain implemented a generous feed-in tariff for renewables in 2007.  In that year, Spain’s solar/PV capacity increased five-fold, and Spain quickly became a world leader.  In 2008, Spain was host to roughly 50 percent of all global solar installations.  A similar boom occurred in wind energy development.  Over the next few years, Spain modified its feed-in tariff to be less generous and to contain a cap on new capacity.  The sector experienced some degree of bust because of regulatory uncertainty, but many installations still occurred.  By 2010, about 20% of Spain’s electricity came from wind and solar (and 20% more from hydro) (see graph below from the link above).

The latest chapter of this story, Royal Decree-Law 1/2012, happened a few weeks ago. The newly elected, more conservative government ended all subsidies for new renewable energy installations effective in 2013.  The law has been justified as an austerity measure to address what is referred to in Spain as the “tariff deficit,” the difference between that the amount that utilities have to pay to acquire and deliver electricity and the amount that they are legally allowed to collect from electricity consumers. But national environmental groups and other supporters of renewables have come out strongly against the new law.  They argue that renewable energy contributes significantly to Spain’s economy and wealth – with jobs, contributions to GDP, reductions in imported energy, reductions in CO2.  In addition, Spain’s renewable sector had become a world leader, and Spain has accumulated a base of experience and knowledge that should be built upon.  They also suggest that new law goes against EU Directives 2009/28/EC and 2010/30/EU, which establish mandatory renewable energy usage targets for 2020.  And they say that the government is blaming the rise of electricity costs on renewables, but that other factors are likely to be more important and will make electricity prices continue to rise.

- Lesley McAllister

China Environmental Experiences #2: Rocky Mountain Arsenal

As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)

But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.

As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.

After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.

But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.

A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)

Several students traveled with me on congested area highways on days when I was overcome with the fumes of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.

Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.

Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?

I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.

In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”

My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”

Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).

The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.

But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.

Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.

--Erin Ryan

Obama's Environmental Conservation Ethic Giving Way to Severe Conservatism?

A few weeks ago, Mitt Romney was mocked by many for labeling himself “severely conservative” (see here, here, and particularly here for examples).  While lately we have seen much focus in the media over the efforts those vying for the Republican nomination as they run to the right, another story about political positioning is not getting nearly as much attention as it deserves:  President Obama’s race to secure the political middle.

One way that story might be told is a month or so ago, Obama stood with environmentalists—at least begrudgingly so—in opposing efforts to fast-track the Keystone XL Pipeline, which would run from Canada to Texas.  Of course, TransCanada Corp. did not give up so easily.  As it pivoted from that political loss, the company settled on a strategy of building the southern portion of the pipeline in short order (which is less controversial and would run through Oklahoma and Texas).  Apparently this segment of the pipeline would provide relief to an oil-production bottleneck in Cushing, Oklahoma.  And, here is why this is newsworthy; today the Obama White House publicly stated that it would support that segment of the pipeline.  His endorsement of this pipeline segment is an indication that, as in many other contexts, the President will ultimately abandon environmental protection.

In an election year, one would expect that a Democratic president would run to the political middle.  Over the past few years, we have seen that when the Obama Administration needs to find middle ground, the pathway to that middle ground is often through bartering away or abandoning environmental protections.  Examples of this are many.  Perhaps the most striking though are the Administration's willingness to cut the EPA's budget to end conflicts with Congress about funding the federal government and the Administration's decision to walk away from stricter ozone regulations this past fall.  As President Obama positions himself for his reelection bid, I fear that his rhetoric about environmental conservation will give way to severe conservatism.

-- Brigham Daniels

In Case You Missed It - Week of February 19-25

• The third Cinema Verde Environmental Film and Arts Festival will run through March 2, 2012 and plans to feature 25 movies relevant to contemporary environmental challenges. 
• High Court of England and Wales treats emissions allowances as property. 
• NY Court finds that local government’s effort to prohibit hydraulic fracturing activities through zoning is authorized, despite preemptive language in the state’s Oil, Gas and Solution Mining Law. 
• Minnesota Public Utilities Commission rejects wildlife protection plan for wind farm project. 
• A recent gas fire at a Chevron Nigeria-operated drilling rig reinvigorates debate over the need to address the impacts of oil and gas production in the country. 
• Settlement resolves mining delay for Mosaic’s 7,000 acre South Fort Meade Extension phosphate strip mining operation in Hardee County, Florida. 
• Environmental and Alaska Native groups challenge air permit issued for Arctic operations of the Shell drilling ship Noble Discoverer.

(Short) Thoughts on Publishing Formats; A (Short) Publication Opportunity

When I initially entered academia, the possibility of publishing something other than a full-length law review article seemed distant, if not downright dangerous.  Publish or perish and all the rest of it.  Yadda yadda yadda.  As I began, however, to see the broader view of what publishing really is about -- disseminating ideas, participating in a conversation -- I also warmed up to putting out shorter pieces.  Writing in a more abbreviated format offers a number of benefits:  It forces you to sharpen your thoughts.  It can serve as an additional outlet for your ideas.  It reaches further audiences.  And, let's face it, more people might be willing to read a 2-page magazine piece or a 500-word op-ed than a full-length law review article.  So, as my thinking on how I want to contribute to the conversation about energy and environmental law and policy evolves, I am increasingly inclined to consider publishing in what, for law professors, might be considered non-traditional outlets.

To that end, here is one opportunity that has come up for publishing a non-law review article:

ABA Section of Environment, Energy, and Resources
April 2012 Energy Committees Newsletter 

The Energy Committees of the ABA’s Section of Environment, Energy, and Resources are now accepting articles for the April edition of the committees’ e-newsletter.  Articles may be on any current energy law or policy topic and should be roughly 1500 words, with in-text citations (no footnotes).

Articles are due Friday, April 6th to Adam Sherwin, Vice Chair of the Energy Infrastructure and Siting Committee ([email protected]).  Those interested in submitting an article are encouraged to contact Adam prior to the submission deadline.

In addition to submissions by lawyers, articles from law students and non-attorney energy professionals are welcome.

Past newsletters may be found at: http://www.americanbar.org/content/newsletter/publications/nr_newsletters/energy_newsletter.html

-Lincoln Davies

SCOTUS: PPL Montana v. State of Montana

Earlier this week, the U.S. Supreme Court issued its opinion in the first of two important environmental cases on its docket this term: PPL Montana v. State of Montana. (The Court has yet to issue its decision in the other, Sackett v. EPA.)

In a unanimous opinion authored by Justice Kennedy, the Court declared in PPL Montana that the Montana Supreme Court erred in finding three rivers navigable for title purposes. Sifting through Justice Kennedy’s citations to the journals of Lewis and Clark, centuries-old newspaper reports, and countless other obscure secondary sources (many of which were not even in the record), the opinion can be summarized so: If commercial travelers had to portage around a segment of a river at the time of statehood, title to that segment is not held by the state unless the segment was so short that it lacked commercial value. The likes of Rick Frank at Legal Planet and Tom Merrill at SCOTUSblog already have provided thought-provoking analysis of this conclusion by the Court.

There is at least one noteworthy (though not necessarily surprising) omission in Justice Kennedy’s opinion: despite the pleadings of PPL Montana and several amici, the Court did not use the case to expound upon its musings on judicial takings theory set out in its splintered 2010 Stop the Beach Renourishment v. Florida Department of Environmental Protection decision. Readers may recall that in Stop the Beach, a 4-2-2 split (with Justice Stevens recused) left open the question of whether judicial interpretations of property law can, like actions of the political branches, amount to unconstitutional takings of property. In short, Justice Scalia’s plurality opinion said “yes” (if a court declares that an “established” property right “no longer exists”); Justice Kennedy, joined by Justice Sotomayor, said “probably not” since the Due Process Clause is well-equipped to address rogue judicial interpretations; and Justice Breyer, joined by Justice Ginsburg, said “very likely not” but the question need not be decided here. However, these ruminations on judicial takings theory proved completely irrelevant in the case at hand, for the Court unanimously affirmed the Florida Supreme Court’s opinion that no taking had occurred.

Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.

Since its release in June of 2010, it appears that at least six lower federal courts have cited Stop the Beach for the principle that property interests are defined by state law for federal takings purposes. This is somewhat ironic, for all eight participating Justices in Stop the Beach arguably can be criticized for conducting an independent review of Florida state law. They all said property rights are defined by state law, yet showed no level of deference to the Florida Supreme Court’s decision doing just that—defining state property rights. Instead, the U.S. Supreme Court unanimously upheld the Florida Supreme Court’s decision only on reasoning set forth in a 1927 Florida case to which the Florida Supreme Court had not even cited. This approach, however, did not come as a total surprise—as Laura Underkuffler has noted, in the fifteen important U.S. Supreme Court takings opinions since 1987, only three actually interpreted property rights in terms of state law.

The PPL Montana Court arguably can be criticized in the same way. For instance, while the Court stressed that the “public trust doctrine remains a matter of state law,” it offered its own, very narrow explanation of the doctrine: “the public trust doctrine…concerns public access to the waters above [the relevant riverbeds] for purposes of navigation, fishing, and other recreational uses.” The lack of deference to the Montana courts was also evident in Justice Kennedy’s assertion that, “contrary to the Montana Supreme Court’s decision,” at least one specific stretch of one of the Montana rivers at issue—the 17-mile Great Falls stretch—“is not navigable for purposes of riverbed title.” As Tom Merrill notes, “Ordinarily, when the Court reviews a decision of a state supreme court, it will correct errors in federal law, and remand for application of the correct legal principles [here, application of the correct navigability-for-title test] by the state courts. … But the statement about Great Falls admits only one action on remand.”

Stop the Beach is arguably a poor case for lower federal courts to cite as demonstrative of deference to state courts or for the principle that property interests are determined with reference to state law, though PPL Montana does not seem far behind.

-Tim Mulvaney

Going Off the Grid

Tomorrow, I am going off the grid for the first time in a long time.  No matter where I've been in the world over the last several years, I've generally had easy access to the internet.  In fact, in the aftermath of 9-11, I was emailing people from China for a friend in DC to give updates on her wedding plans because cell phone and internet access were hard there for a while.  

But I'm in that cusp generation who grew up without being constantly wired.  I first used email between college and law school.  I got my first cell phone when I moved to LA after law school (because who could be in LA without a cell phone).

Perhaps because of that, I tend not to be a first adopter on gadgets.  It took me a while to see the logic of the ipod, and now I can't imagine taking my daily walks without my books on tape on it (I just loaded up for the trip on some new not-so-intellectual novels).  I finally got a kindle a few weeks ago and I find myself reading more again because I can have so many different kinds of books with me in my purse for those five minute gaps that are too short for pulling out my computer.

As an environmentalist, I struggle with my personal relationship to technology.  On the one hand, I push people to use it and stop sending those brochures and reprints.  It seems like the extra energy used by people getting these things electronically is likely less wasteful than the trees cut down for unsolicited announcements of lectures and books that often aren't in an area that I write or teach in.  Or at a simpler level, I urge people to use that double-side printing technology that our big multi-function machines have.  And constructive technology has been a key part of my work for some time.  One of my current research projects on suburbs and climate change is full of examples of cities making technological transitions that use less energy and pay back pretty quickly.

On the other hand, I sometimes fear that my email account filling at a ridiculous rate (sometimes with the emails to follow-up on the emails that I have not yet replied to because I get 100s behind whenever I stop to write) and the constant bombardment makes it much harder for me to carve out the quiet time to actually think.  I am excited by the new energy technologies that are crtiical to our making a needed transition even as I fear the intensive scientific focusing on reversing climate change through geoengineering without any clear governance structure.

And so as I ambivalently mull, I'll head off to Northern Minnesota for a weekend without cell phone reception or my email, but with my ipod and kindle in tow.  It feels a little different than when I was a kid sitting at the top of mountains in Colorado feeling a deep sense of peace and sprituality as I took in the beauty around me, but I know I'll still marvel at the majesty of nature even as I wind down at night perhaps reading one of the teen vampire books I've checked out from the public library which appeared on my kindle thirty seconds later.  

Hari Osofsky

Mardi Gras, Check. BP “Trial of the Century” Here We Come.

Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year.  That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.

Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging.

First, though, I’ll start with the background of the case (you may also be interested in these CPR white papers: Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence (Oct 2010) and The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (Jan 2011)). Here are some answers to common questions. 

Q: Can you remind me what the BP Oil Spill was all about?  I remember “Top Kill” and “I’d like my life back,” but the rest of it is a little hazy.

A: On April 20, 2010 BP and its contractors were in the last stages of drilling a three-mile long hole in the seabed fifty miles off the Louisiana shore. They were in the process of plugging the hole, with plans to later extract oil from the massive reservoir that lay below.  The oil rig was called “Deepwater Horizon.”  The well was called “Macondo” (yes, the same name as the fictional village in Gabriel Garcia Marquez’s One Hundred Years of Solitude—the village that was eventually blown apart by an apocalyptic storm and erased from history.  This is what lit teachers call “foreshadowing”).

The project had not gone smoothly, and already operations were a month late and $40 million overdue. At 9:30 that night, the well started burping methane gas. The gas shot up through the pipes, caught fire, and engulfed the rig in flames. Eleven of the 126 people aboard died and many more were injured. Two days later the rig sank and oil began spewing from the wellhead, roughly a mile below the surface. BP applied thousands of gallons of toxic dispersants on and below the surface in an effort to prevent the oil from coming ashore. Even so, the oil severely damaged beaches, estuaries, and marshes, from Texas to Florida. Large swaths of the Gulf were closed to fishing.

As President Obama said two months after the blowout: “Already this oil spill is the worst environmental disaster America has ever faced.” Earlier, BP’s then-chief executive Tony Hayward invited public vilification when, in an inexplicable burst of self-pity, he whined, “I’d like my life back.” Despite efforts to cap the well (including the so-called “Top Kill” method), oil continued to spew until July 15, 2010 when BP successfully capped the well and later sealed it with cement. According to some estimates, nearly five million barrels of oil billowed into the Gulf before it was capped.

Q: What did later investigations show?

A: We’ve learned quite a bit from media reports, industry incident reports, a presidential commission, an examination by the Coast Guard and the Department of Interior, and a report from the National Academy of Engineering.

Basically, we know that before the blowout BP used cheaper and quicker methods for building the well’s walls, misread important diagnostic tests, and removed the most important protective barrier to methane bursts before it should have. We also know there were problems with a cement mixture that Halliburton had supplied and that employees of Transocean made some bad decisions when they realized the rig was going to blow.

Q: So that explains the lawsuit. Who’s suing?

A: The trial in New Orleans—officially called “Multi-District Litigation-2179” (MDL)—consolidates 535 lawsuits originally filed all over the country. More than 110,000 individuals and businesses have filed notice to take part in the MDL. Plaintiffs include fishers, seafood processors, restaurants, coastal landowners, individuals who were harmed by dispersants or oil, and many others.  The litigation also includes claims by the federal government, Gulf Coast states, and a few municipalities. Several states in Mexico have also filed claims. The federal and state (?) government claims generally seek compensation for natural resource damage, response costs, or damage to their economies.

Many of these plaintiffs are at the same time trying to resolve their grievances through BP’s Gulf Coast Claims Facility (GCCF), a $20 billion compensation fund administered by Kenneth Feinberg. Plaintiffs who reach a final settlement with the GCCF waive their claims and must withdraw from the MDL.

This trial does not address shareholder suits (which will be handled in Houston) or criminal charges.

Q: Who are the defendants?

A: The most prominent defendants are BP, which held the lease on the Macondo well; Transocean, which owned Deepwater Horizon; Halliburton, which poured the cement lining into the well; Cameron, which manufactured the blowout-preventer that malfunctioned during the crisis; and Nalco, which manufactured the dispersants that are alleged to have made people sick and to have harmed the environment. In later stages of the litigation, the federal government and some states may be required to defend their actions in overseeing containment of the oil and clean-up operations.

Q: What issues will the court decide?

A: For all its complexity, the goal of the trial is pretty simple: to determine the proportion of fault among the defendant companies and to determine the extent of penalties and damages. These questions will be decided in a bench trial (without a jury) by federal district court judge Carl Barbier.  In reaching his decision, he will rely on federal maritime law, the Clean Water Act, the Oil Pollution Act, and the Outer Continental Shelf Lands Act. (The state law claims have all been dismissed as preempted by federal law.)

The allocation of fault, will, of course, affect the share that each defendant must pay. But that amount also depends on the degree of carelessness the court attributes to the parties. For instance, a finding of gross negligence or willful misconduct could result in punitive damages, driving the verdict from a few billion to more than $20 billion. An award on the higher side could go far in helping a state like Louisiana (which suffered the most damage) to restore its tattered coast and repair its economy.  But such an award would almost certainly be appealed.

Q: Tell me more about Judge Barbier.

A:  Judge Carl Barbier has served on the U.S. District Court for the Eastern District of Louisiana since 1998.  He is a Clinton appointee. Judge Barbier was born in New Orleans and holds a law degree from Loyola University New Orleans. He is known for his expertise in maritime law and complex litigation. Over the last year, he has impressed observers with his efficiency and endurance, wrestling hundreds of cases to the ground and consolidating them into this litigation.

Q: How long will this trial take?

A: If it does not settle, it will take more than a year. Judge Barbier has planned the trial to unfold in three phases. The first phase, beginning on Monday, will deal with everything leading up to the explosion and the start of the oil leak. The second phase, scheduled to begin in mid-July, will focus on attempts to stem the flow of oil, inquiring into the crucial question of how much oil was ultimately discharged into the Gulf (a fact that affects the amount of penalties under the Clean Water Act). The third phase, which is not yet scheduled, will deal with the efforts to contain and clean up the oil.

Q: You’ve mentioned settlement twice.  Will this case settle soon?

A: Honestly, nobody knows. Many of the traditional experts (experienced trial lawyers and legal scholars) say it should. With such uncertainty about the punitive damages, the argument goes, both sides have strong incentives to find middle ground. Plus, BP cannot be looking forward to seeing its dirty laundry aired out in court. But some local attorneys I’ve spoken to emphasize that individual personalities matter a lot in settlement negotiations and that with so many people involved, negotiations can easily derail.

Q: I missed Mardi Gras this year, should I make plans to visit New Orleans to see the trial instead?

A: No. The courtroom will be completely packed with lawyers and journalists.  There is only a small amount of seating available to the public on a first-come, first-served basis.  Everyone else will have to watch the trial on video from “overflow rooms.” My crack research assistant Stephen Wussow will occasionally visit the proceedings and report back. I’ve already warned him to bring lots of water and protein bars.

Q: Did Tony Hayward ever get his life back?

A: Sort of. The former geologist and yachting-enthusiast left BP in October 2010 and now works for Glencore International, a commodities company involved in hardrock mining.  Mr. Hayward oversees policy related to environment and safety.

- Rob Verchick

Rob Verchick is a law professor at Loyola University New Orleans and a research scholar at the Center for Progressive Reform. This entry is cross-posted at CPRBlog.

When Two Wrongs Expose the (extreme) Right: Peter Gleick and the Heartland Institute

I am an environmental law and policy academic, not a climate scientist. But I do believe in the overall integrity of the peer-review academic publishing process, the scientific method, and the corresponding inability of thousands of scientists across the world to coordinate a global conspiracy or hoax on climate change science. So when the Wall Street Journal editorial dismissing climate change emerged in January, I waited eagerly for a credible, climate science colleague-in-arms to make a reasoned explanation of its lack of credibility. Peter Gleick, a climate scientist and president of the Pacific Institute, did just that, along with numerous others. In fact, Gleick has been at the forefront of the battle against climate change misinformation, directly engaging critics making unfounded assertions on a regular basis - a task that I have found quite tiring and emotionally taxing at times. So for that I applaud him. 

Even so, last night Gleick admitted that he moved from the forefront of this battle and across enemy lines, in the form of a covert operative adopting - as operatives so often do - the tactics of those he opposes. In short, Gleick used deceit to obtain the now infamous Heartland Institute's internal documents mapping out their climate change denial campaign. As described by Gleick:

At the beginning of 2012, I received an anonymous document in the mail describing what appeared to be details of the Heartland Institute's climate program strategy. It contained information about their funders and the Institute's apparent efforts to muddy public understanding about climate science and policy. I do not know the source of that original document but assumed it was sent to me because of my past exchanges with Heartland and because I was named in it.

Given the potential impact, however, I attempted to confirm the accuracy of the information in this document. In an effort to do so, and in a serious lapse of my own professional judgment and ethics, I solicited and received additional materials directly from the Heartland Institute under someone else's name. The materials the Heartland Institute sent to me confirmed many of the facts in the original document, including especially their 2012 fundraising strategy and budget. I forwarded, anonymously, the documents I had received to a set of journalists and experts working on climate issues. I can explicitly confirm, as can the Heartland Institute, that the documents they emailed to me are identical to the documents that have been made public. I made no changes or alterations of any kind to any of the Heartland Institute documents or to the original anonymous communication.

I will not comment on the substance or implications of the materials; others have and are doing so. I only note that the scientific understanding of the reality and risks of climate change is strong, compelling, and increasingly disturbing, and a rational public debate is desperately needed. My judgment was blinded by my frustration with the ongoing efforts -- often anonymous, well-funded, and coordinated -- to attack climate science and scientists and prevent this debate, and by the lack of transparency of the organizations involved. Nevertheless I deeply regret my own actions in this case. I offer my personal apologies to all those affected.

Peter Gleick's actions have no doubt unearthed some important and useful information about the uphill battle that truth generally, and climate science specifically, faces against ideologues bent on spreading misinformation. Indeed, we do need a "rational public debate" - I would be the first to applaud peer-reviewed, verified scientific research demonstrating that some unforeseen feedback loop will occur over the next 100 years that will unexpectedly mitigate current projections of climate change. But that is an altogether different matter than groups intentionally and purposefully spreading unfounded and baseless information out of political ideology. This is the first wrong.

But the second wrong is Gleick's actions. As with the debate on torture, it is difficult to convince the "opposition" that we are on the side of truth, freedom, and peace if we insist on engaging in the same tactics they use to "achieve" those objectives. Similarly, it is difficult to maintain credibility - or it at least gives the "opposition" a foothold for claiming a lack of credibility - when deception and fraud are used to expose the deceitful and fraudulent tactics of others.

Ultimately, the wrongs here, though exposing the tactics of the extreme right in the climate change "debate," do not provide the correct blueprint for engaging in this battle. Though it is important that the Heartland Institute's tactics are exposed, I am unsettled at how it came about. For other perspectives on both sides of the question see here, here, here, and here. I would, however, be interested in the perspective of others as to when getting to the truth is "worth" a short-term loss of ethical and moral responsibility. Perhaps this is not a situation analogous to torturing enemy combatants to create a world where vicious regimes no longer engage in crimes against humanity (and obviously I am not equating the severity of the crimes here to torture, only highlighting circumstances where we decry the tactics of others while engaging in similar tactics). Perhaps there is a strong case that it is more like telling your spoiled, irresponsible child (as some of these think tanks and presidential candidates [Santorum] seem to be) that you are going out of town until Sunday, only to purposefully crash their unauthorized party on Saturday. But even Gleick acknowledges that his actions did not further the trust and willingness of the climate change fringe to engage in a rational debate, and indeed it likely has done more damage. Is this, however, a small price to pay for larger truths to be advanced a bit further and for steps to be taken toward responsible attempts to avert future global harms? When do two wrongs make a right in the environmental context? In the end, I do not think this was a compelling case for it.

- Blake Hudson

Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?

The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.

1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.

2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.

3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.

 Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.

~~Deepa Badrinarayana

Two Great E.L. Opportunities in China: Visiting Professorships and (Free!) Graduate Degrees at Ocean University



As I mentioned in yesterday's post, I’m teaching at Ocean University of China this year as a Fulbright Scholar. Ocean University is one of the nation’s key comprehensive universities with a special expertise in marine sciences and coastal zone management. It also has a strong School of Law and Political Science--and unlike most Chinese universities, a serious environmental law program. It is also in one of the most beautiful cities in China--the ocean resort town of Qingdao, girded by the tallest coastal mountains in all of China.  In short, an excellent place to spend some quality time!

I’m writing this additional post to share news of two great opportunities there for environmental law students and faculty from beyond China: (1) the chance to learn about Chinese environmental law from the inside through a funded master's degree in environmental law, and (2) the opportunity to do the same by teaching a short course as a Visiting Professor. I hope that you will encourage potentially interested students to consider the degree program, and I seriously urge each of you to consider visiting Ocean University yourselves. Here's the 411:

1. Fully Funded Graduate Degrees in Environmental Law: As part of its mission to internationalize the program, Ocean University has received a national grant to host a series of international students for (free!!) graduate education in Environmental and Natural Resources Law. It’s an amazing opportunity for students interested in international/Asian environmental law—basically, a fully-funded 2- or 3-year graduate degree. The grant covers tuition, housing, insurance, living expenses, and domestic travel expenses, so the only cost to applicants is international airfare.

The program was recently established, but the application deadline is March 31. So far, there are still some openings, but applicants should act fast. You can find the official description with more information on how to apply here (scroll down for the English translation).

2. Call for Applications for Visiting Environmental Law Professors: The School of Law and Political Science is also inviting applications for visiting professors in the field of Environmental Law for Fall 2012. Visitors will teach one 2-credit course (30-32 credit hours) and offer at least one open lecture in their field of expertise during at least one month spent on campus. The university will cover the costs of international transportation and health insurance, provide a free apartment on campus, assistance with the visa process, and a monthly stipend of 4000 RMB (@ $700 U.S.) to cover in-country living expenses.

You can find more information about the program and specific application instructions here. Selections for the fall semester will be made before the end of May.

Finally, as yet another reminder of the tragic loss of our dear friend Svitlana Kravchenko this month, there is a new opening available during the Spring 2012 semester (which begins next week and extends through July).  New applications are welcome.

--Erin Ryan

Reducing Energy Consumption at Educational Institutions - Some Success Stories

My undergraduate college, the small, public liberal arts University of Montevallo, has embarked on a variety of exciting scientific projects, not the least of which is its new James Wylie Shepherd Observatory Complex (seen in the background of the image to the right). Piling innovation upon innovation, the observatory recently installed eight solar panels that will generate enough electricity to offset all energy use at the facility. The project "also includes the installation of an 800-gallon rainwater collection and purification system to serve as the primary water supply for the JWSO, and the phytoremediation of the soil using sunflowers and other suitable plants to extract a variety of pollutants." Furthermore, "the landscaping will showcase drought-resistant plant life indigenous to Alabama, and will include an area for fruit trees to benefit visitors to the site. The restrooms will feature self-composting toilets . . . ." The project was funded by the University of Montevallo Sustainability Committee, the UM Green Fund, the Student Government Association, and Legacy, Inc. (an environmental education corporation). When my day is so often filled with frustration over the state of the environment, I was excited to see that during such difficult economic times a small public college (often the first to receive budget cuts during economic downturns) remains committed to renewable energy and environmental responsibility. While the Solyndra's of the world may get all of the attention, small but significant steps are being made to promote and shift toward renewable energy all over the country - especially at educational institutions.

Carnegie Mellon University is currently in the midst of a three-week "Campus Conservation Nationals" (CCN) competition. The competition is the "first national competition aimed at motivating college students to reduce electricity and water consumption on their campuses." Carnegie Mellon has used the opportunity to organize a competition amongst dorms on campus to reduce energy usage, even establishing a website where students can check real-time electricity usage data. In the spirit of the X-prize, these types of events can harness the often irresponsible inspiring competitive spirit of college-age students to achieve positive environmental results.

K-12 educational institutions are getting in on the competitive approach to energy efficiency as well, saving energy as well as teaching children the value of renewable energy. In the U.S., these institutions spend over $8 billion a year on energy. The four week long Green Cup Challenge, which involves 116 schools across 22 states, has caused at least one school to cut its electricity consumption by 17% through "simple changes in behavior," such as changes to thermostats, shutting off computer monitors and lamps, installing skylights, and using timers on lighting systems. Other schools "have used the Green Cup Challenge to promote investments in renewable energy and efficiency projects that may have not been possible without the support of the Green Schools Alliance." As an example,

"After installing a number of energy efficient technologies, including a solar PV system, a 'bird-friendly' wind turbine, green roofs, and changing other energy habits, the Latin School of Chicago has seen a savings of $45,000 a year on their energy bills, and is expected to pay off its initial investment in less than 10 years."

So while presidential candidates wax idiotic poetic about environmental conspiracies and hoaxes, and think tanks engage in misinformation campaigns aimed at children in elementary schools, it is encouraging to see that our most important institutions of learning are not buying it. Even though students may continue to increase their consumption of energy drinks, it's great to see them cutting back on energy where it matters.

- Blake Hudson

New Series: Environmental Adventures in China

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

--Erin Ryan

In Case You Missed It - Week of February 12-18

• The American Energy Innovation Summit will be held in Washington D.C. between February 27 and 29, 2012. Top brass from government and industry are scheduled to speak at the event. Also, invited are top winners of America’s Next Top Energy Innovator Challenger. Curious to know who they are and what they are innovating? Details are available at http://energy.gov/science-innovation/innovation/americas-next-top-energy-innovator/americas-next-top-energy-innovator 
• The DOE has requested $27.2 billion as part of the FY 2013 budget. Details, including allocation between different types of energy are available here. 
• According to a recent study, wildfires cause 339,000 deaths per year globally. 
• A study on lead levels in New Orleans in the aftermath of Hurricane Katrina concludes that lead contamination above the federal standards in and around residential areas presents serious risks to the population, particularly children. The study notes that about 61% of residences are exposed to high contamination levels.
• Interested in reading and/or commenting on proposed regulations and other agency action, a list of proposals with due dates are available here. 

Nuclear Waste Siting Processes: Looking for Volunteers

Last time, I wrote about the Yucca Mountain controversy and highlighted the question of how to structure a nuclear waste siting process in such a way as to maximize the voices of many stakeholders.  The Blue Ribbon Commission has recommended a voluntary engagement approach for the United States, whereby an agency would publish technical criteria and invite interested communities to volunteer to host such a site.  This suggestion, I’ve noticed, often generates you’ve-got-to-be-kidding-me laughter—what community would ever volunteer?

As it turns out, some do, raising a host of other questions about process design in the context of dread risks.  Last month, Spain announced that a small village south of Madrid has been selected to host the country’s first full-fledged nuclear waste repository.  According to news reports, the citizens of Villar de Canas are thrilled:  they lobbied hard for the facility and hope it will remedy the town’s 30% jobless rate. 

A similar story is unfolding in the United States:  the town of Carlsbad, New Mexico is already host to the Waste Isolation Pilot Plant (WIPP), which stores transuranic waste in an underground repository.  The location was selected in the early 1970s, with strong local support.  Even so, the first shipment of waste didn’t arrive until 2001, following many years of technical study, stakeholder negotiations, legal challenges, and legislative activity.  Now that Yucca has stalled, Carlsbad is volunteering to take the nation’s high-level waste. 

Putting aside the technical considerations—for instance, the salt beds underlying Carlsbad are excellent geologically, but they are not perfect—could Carlsbad’s interest short-circuit what should be a more deliberative process?  Any repository will bring money and jobs to a locality, in addition to benefits packages that are typical of nuclear waste siting schemes.  Should other communities have a chance to compete for those benefits? Should we be concerned that money and jobs operate as bribes? Is there an environmental justice problem here, or should we be comfortable with communities speaking for themselves?

A number of process design features might ease some of these concerns.  For example, voluntary engagement schemes require strong veto authority for the potential host communities to ensure they have meaningful bargaining power.  They start by identifying a site’s necessary technical criteria as a way of building scientific legitimacy into the process.  And they do allow communities to compete.  Of course, our federal scheme adds some interesting wrinkles to the process.  While Spain could work directly with its localities, the United States will have to develop consensus across states, tribes, and local governments.  It promises to be a long road ahead, but hopefully we can collectively make a decision about where to site our waste.

--Emily Meazell

Ambiguity's Ambiguities

My administrative law class recently covered Chevron v. Natural Resources Defense Council.  Our casebook (Funk, Shapiro, and Weaver, which I highly recommend) uses problems, and at the end of the Chevron problem, I always ask how many students think the government should prevail and how many would support the petitioners.  Most years the split is about fifty-fifty.  I find that really interesting.

In part, that split indicates that the casebook authors chose a good problem.  But I’ve found similar splits when Chevron questions come up in other classes, and I think the persistent disagreements indicate just how much normal people disagree about what counts as ambiguous.  That’s not exactly an original observation, but it is an important, and sobering, one.  So much of legal training is based on the premise that if you write carefully, people will understand your meaning and be persuaded by your arguments.  Yet every year, my informal, non-rigorous studies of my own classes call even the first part of that premise into question.  They remind me that just agreeing about the boundaries of ambiguity, let alone the meaning of language, can be a hard thing to do.

These little exercises also raise intriguing questions about factors affecting perceptions of ambiguity.  I wonder if the disparaties of perception among my students are largely random, or if there are predictable controlling variables.  Political ideology clearly does seem relevant, but what else might matter?  Are there personality traits that correspond to a willingness to perceive ambiguity or clarity?   Obviously a threshold level of intelligence is necessary to perceive clarity in anything, but is there a point at which smarter people (however you choose to measure that) start to perceive more ambiguity?  Does legal education change people’s perceptions of ambiguity?  All these questions might better be answered (maybe they have been answered) by linguists than lawyers, but they also seem to have implications for the ways we teach and practice law.

-Dave Owen

Wind Energy Continuing to Grow Globally

Since moving to Minnesota, I've been thinking a lot about wind energy.  This new focus has come in part because the highest onshore wind capacity in the United States, as depicted in this National Renewable Energy Laboratory map, is a strip up the country's middle.  Also, as I've been increasingly frustrated by the polarized dialogue about climate change, it's been exciting to observe MISO, the Midwest's Regional Transmission Organization, experimenting with how to get intermittent renewables (with a focus on wind) better integrated onto its grid.

But wind power is not simply a dynamic industry in my region of the country.  The Global Wind Energy Council released new statistics last week indicating that despite the bad global economy,

the wind industry installed just over 41,000 MW of new clean, reliable wind power in 2011, bringing the total installed capacity globally to more than 238,000 MW at the end of last year. This represents an increase of 21%, with an increase in the size of the annual global market of just over 6%.  Today, about 75 countries worldwide have commercial wind power installations, with 22 of them already passing the 1 GW level.  

This continued expansion of the renewable energy industry globally gives me some hope for the energy transition we need to make to have a cleaner, more secure future.

Hari Osofsky

What Do Law Professors Do? It's All About Your Perspective

This is floating around the internet, though I pulled it off of Jim Milles Twitter feed. I'm sure we could come up with a variety of permutations and combinations of different perspectives :-)

And then there are the lawyers:

- Blake Hudson

Changing the Way We Think (about Building)

Existing buildings – in their physical presence, design, and operations - challenge the goal of sustainability in the built environment.  Older buildings can be leaky, inefficient, and even unhealthy, and they typically do not perform well against the expectations that we draw from today’s green building techniques and technology.    

There is evidence that green building programs are impacting the existing building stock through retrofit programs offered in LEED and others.   The number of projects certified under LEED for Existing Buildings: Operations and Maintenance (EBOM) surpassed those certified under its new construction counterpart in 2009.  Spending on remodeling and retrofits has been on the rise and is predicted to grow to $10.1 billion-$15.1 billion by 2014.  Recently, the USGBC announced that LEED-certified retrofits have outpaced new construction certifications on a cumulative basis.

We might view green retrofits of existing buildings as significant.  Of course, the past is a major obstacle for achieving sustainability in the built environment, and the provision of alternatives to “business as usual” in existing structures is itself a victory.  In addition, and perhaps more importantly, the growth in green retrofits suggests that sustainability may involve changes in people as well as buildings. 

- Keith Hirokawa