Environmental Law Prof Blog

Mingo Logan Coal Co. v. EPA -- Some Initial Reactions

On March 23, 2012, the D.C. District Court issued an opinion in Mingo Logan Coal Co. v. EPA that raises a host of fascinating environmental and administrative law issues.  The facts alone have attracted quite a bit of attention—this case is about mountaintop mining.  There is plenty to say about this case, but here are some initial reactions focusing on two aspects of the opinion:  the administrative law analysis; and the overall tone of the reasoning.

Some Background

Mingo Logan, the petitioner in the case, obtained various permits from West Virginia for its mountaintop mining operations (including an NPDES permit that EPA initially opposed).  It also applied to the Corps of Engineers for a Clean Water Act (CWA) section 404 permit to discharge material from its mine into nearby streams.  EPA expressed concern over this permit and the accompanying EIS, but it didn't exercise its veto authority and the permit was eventually issued in 2007.

Two years later, EPA requested that the Corps withdraw the permit, stating that downstream water quality impacts hadn’t been adequately addressed.  The Corps rejected that request, and in 2010, EPA announced its plans to withdraw the specification of most of the streams comprising Mingo Logan’s discharge area.  The withdrawal became final in 2011, and Mingo Logan sued.                  

The Chevron Analysis

In her opinion on cross motions for summary judgment, Judge Amy Berman Jackson treated the issue—whether EPA exceeded its statutory authority under section 404(c) of the CWA by withdrawing the site specification after the Corps had issued the permit—according to the two-step Chevron analysis.  The language under consideration:  "The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site . . . ."  

The court's Step One analysis set up a few strawmen of possible but unlikely meanings of this provision before knocking them down and turning to the statute as a whole.  Here, the court expressed concern about the mechanics of a post-permit withdrawal.  It's true that the agencies don't appear to have worked out those particulars, but it's not clear why that undermines the authority of the EPA to withdraw a specification.  Aren't there plenty of situations where Congress delegates broad authority and leaves the particulars to the EPA?  In any event, the court here created some Brand X ambiguities by not being entirely clear whether the statute unambiguously prohibits a post-permit withdrawal. 

But the Step Two analysis is where things got especially interesting.  First the court asked whether Chevron applied, given that two different agencies share responsibilities for 404 permitting (some courts and scholars treat this as a Step Zero issue instead).  Judge Jackson determined that Chevron was not warranted, but she may have missed an opportunity for deeper analysis.  Other courts have examined agencies' responsibilities more closely here and given deference to the agency with expertise.  Arguably, the EPA has expertise when it comes to reasons a withdrawal would be warranted.  The court decided Skidmore deference would be appropriate in this circumstance (again, slightly unusual to embed that in Chevron Step Two).  But then it gave short shrift to the things that matter under Skidmore, like the consistency of the agency's interpretation over time (it's been in place since 1979).  An agency's policy rationales also matter under Skidmore, but the court dismissed the EPA's policy statements on the matter while raising its own policy concerns about commerce.  Ultimately, the court determined that EPA's interpretation is unreasonable; thus, the agency acted outside its statutory authority. 

A Few Words About Tone

But here's what really stood out about the opinion:  its tone was disrespectful and at times, caustic.  Take this passage:

. . . EPA resorts to magical thinking.  It posits a scenario involving automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.  Poof!

No matter the substantive outcome or administrative law approach, it's disappointing to see a court treat one of the parties disrespectfully.  Especially for issues that arouse such passion (jobs, mining, mountains, water), what is the impact on the perceived legitimacy of our system in the long-term when judicial rhetoric takes this kind of turn?

For some great insights, take a look at Dave Markell, Tom Tyler, and Sarah Brosnan’s forthcoming empirical piece on procedural preferences, trust, and the importance of the decisionmaker treating parties in a respectful way.  The bottome line:  it matters.

Please, let's aim for civil discourse.  And let's model respectful behavior for our students.

--Emily Meazell

Thinking, Faster than all those Slow People

I’ve been working my way through Thinking, Fast and Slow, which is psychologist Daniel Kahneman’s compilation of decades of work exploring the ways biases and heuristics affect people’s decision-making.  It’s a fascinating book, with interesting applications to many other fields, including law, and is well worth a read.

Kahneman wants to alert his readers to the limitations of their own decision-making, in hopes that we can better understand and account for the ways we’re not quite as rational as we would like to think.  But as I read, I’m discovering a strong temptation to apply his insights in a rather different way.  Kahneman’s insights can ameliorate the cognitive dissonance I otherwise would feel when I realize that an intelligent person has very different views than I do.  To put the point slightly differently, Kahneman helps me forgive people for not understanding the world quite as well as I do.  “It’s not that they’re unintelligent, or that I’m wrong,” I can tell myself.  “Their thinking is just distorted by the (fill in the blank) bias.  Who could blame them?”

This is great!  And it can be helpful not just in professional situations, but also in personal ones.  Or at least I think it should.  But then this kind of stuff happens:

Meg (my wife): (watching HGTV) Do you think we should remodel…

Me: No.

Meg: …the upstairs bathroom to look like that?

Me: No.

Meg: It looks great.

Me: No it doesn’t.  That’s just the halo effect.

Meg: The what?

Me: The halo effect.  The designer has a strong chin, biceps three times larger than mine, and a subtle whiff of sensitive metrosexuality.  That makes you like him.  And because you like him, you like his bathroom design.  Look, it’s explained right here on page...

Meg: We’re remodeling the bathroom.

Or this:

Meg: Did you let Ethan play with my phone?

Me: Yes.

Meg: He just put it in the dog’s water dish.

Me: Well, yes, he did.

Meg: So… should we let him play with my phone?

Me: Sure.

Pause

Me: Look, you’re falling victim to hindsight bias.  Just because a bad outcome occurred doesn’t mean it was an unreasonable decision.

Pause.  Dark look.

Me: It’s explained right here on page…

Meg: Don’t you have something else to read?

 

So perhaps these wonderful features of Kahneman’s book (features which, I should stress again, are exactly the opposite of the effect he hopes to create) aren’t quite so wonderful. 

Nevertheless, I suspect I’m not the only one having these issues.  Kahneman’s work (often the articles he co-authored with Amos Tversky) frequently appears in legal-academic literature.  Quite often, it seems to me, it comes up when authors are explaining why other people don’t realize the failings of their policy preferences, and haven’t adopted the more enlightened view that just happens to be held by the author.  I haven’t done any sort of systematic survey, and my perception could be just a little bit of the availability effect at work.  But it still leads to an idea.  Perhaps the psychologists and behavioral economists should add one more bias to their ever-growing list.  We could call it Kahneman-Induced Bias, and it would refer to situations in which time spent with cognitive bias theory reinforces rather than reduces a reader’s reluctance to consider the possibility that he or she might be just plain wrong.

- Dave Owen

Experiencing Nature

Should environmental law be concerned with access to and engagement with nature? This question is complex and deep, and it requires us to draw on connections I hope to discuss in this forum. 

Despite evidence to the contrary, it has been argued that today’s young people are not interested in saving the environment. On the other hand, as several of this blog’s editors have reported, an understanding of nature is essential to visioning environmental protection, if only because environmental literacy has potential to direct the course of social norms.

When it comes to survival and well-being, humans depend on the workings of nature and are beginning to value it as such.  One poll suggests that a majority of voters place a high priority on protecting nature’s ability to support life, provide benefits such as food and clean air and water, and protect from natural hazards such as floods and hurricanes. Perhaps there is something more subtle and sublime attained by our own personal experiences in nature.   Nancy Wells, an environmental psychologist at Cornell University, has studied differences in children that may be influenced by access to nature and argues for an association between interaction with nature and the ability to cope with adversity. 

My friend Troy Payne explains that experience also allows us to believe in nature – knowing without fully understanding that we are subject to the prerogative of nature.  He spends a great deal of his time remembering what that means through experiences in and with nature. Troy has captured a spectacular array of sounds, visions, and poetry in his multi-media presentations.  It seems Troy has hit upon something quite important, and you can decide for yourself whether you agree by visiting his artistic and engaging work with Black Lantern Synergy. 

- Keith Hirokawa

Towards a Bioeconomy?

While “green economy” is the term of choice at Rio+20, “bioeconomy” is also becoming a popular term. In September 2011, President Obama announced a plan for a National Bioeconomy Blueprint. Several European countries, including Finland and Germany already have bioeconomy strategies, and the European Commission (the executive branch of the European Union) published an action plan for boosting its bioeconomy last month.

So what is a bioeconomy exactly? In the US, the emphasis is officially on “harnessing biological research innovations to meet national challenges in health, food, energy, and the environment.” See the October 2011 Request for Information (RFI), 76 FR 62869. Based in the RFI, the Administration is particularly interested in improving R&D; moving innovation from lab to market; creating jobs; reducing regulatory burden; and public private partnerships.  According to the EU’s new action plan, titled "Innovating for Sustainable Growth: a Bioeconomy for Europe,” a bioeconomy “encompasses the production of renewable biological resources and the conversion of these resources and waste streams into value added products, such as food, feed, bio-based products and bioenergy.”  The action plan endorses greater (1) “investment in research, innovation and skills”; (2) “Reinforced policy interaction and stakeholder engagement,” through the creation of a Bioeconomy Panel, a Bioeconomy Observatory and regular Stakeholder Conferences; and (3) “Enhancement of markets and competitiveness in bioeconomy,” such as markets that transform food wastes into bio-energy. 
       
I kind of like the term bioeconomy. To my mind, it brings the idea of living within the limits of the biosphere, of changing our human economy to fit the earth’s economy.  But there are lots of concerns about what industry and government mean when they use the term. The basic idea, after all, is of turning biomass in marketable goods and services – biofuels, bioplastics, bioenergy, etc.  And biomass will presumably be produced using the techniques of industrial agriculture, which isn’t particularly biofriendly. Concerns include the destruction of biodiversity; erosion; pollution; deforestation; land-grabbing; and increased GHG emissions. A critical expose was written in 2010 by the Canada-based ETC Group (or, Action Group on Erosion, Technology and Concentration), The New Biomassters - Synthetic Biology and The Next Assault on Biodiversity and Livelihoods. As the authors explain, “what’s behind the dash to biomass is not high ideals but the calculated interest of the corporate bottom line. Far from changing to a new economy, the biomass transition describes the retooling of the same old economy of production, consumption, capital accumulation, and exploitation – only now a new source of carbon is being plundered to keep the industrial machines going.”

Finally, if you are in Berkeley this week, you might want to sit in on UC Berkeley’s School of Natural Resources’ 5th Bioeconomy Conference, which started yesterday and features primarily academic speakers in the area of agricultural and resource economics.

- Lesley McAllister

Shale Gas and Oil: What's New (and Is It New)?

America has continued to experience an upsurge in domestic oil and gas production--a trend that the Energy Information Administration predicts will last through the next several decades.  The oil industry in North Dakota's Bakken Shale, for example, is booming thanks to horizontal drilling and hydraulic fracturing, and a March 2012 New York Times article highlights the social effects, from employment of formerly jobless people from around the country to growth in housing demand and, perhaps, crime.  The Times also reports that we are inching "toward the goal of energy independence" as production of gas and oil within our borders keeps rising as a result of hydraulic fracturing and other technologies.  This follows an earlier Wall Street Journal article reporting that the United States in 2011 was moving toward the status of net exporter of energy--partly due to the economic downturn but also rising production and international demand.

Anyone familiar with old stories from Texas and Pennsylvania oil fields knows that this country has a long history of oil and gas production and that in some respects, this boom is nothing new. In response to industry's and state regulators' repeated reminders that fracturing has occurred for more than half a century, I argue that several things are, decidedly, quite new.  First, this boom is occurring in different times:  We now have better renewable technologies, and our abilities to support efficient consumption of energy have expanded.  These solutions won't offer a full substitute for oil and gas--or even close to one.  Booming production of unsustainable fossil fuels occurs against this backdrop, though, and has important effects on the renewable energy industry.  Betsy Burleson has posted an excellent article that addresses this issue, noting that "natural gas production is likely to stunt the direction and intensity of renewable energy by up to two decades" and suggesting a path forward to ensure effective and just policy moving forward. 

Second, as shown by the outpouring of media attention and citizen participation in EPA meetings around the country in 2010, many Americans are worried about the environmental effects of oil and gas extraction--perhaps even more so than in previous booms. To assert that production has long occurred and that there is nothing to worry about ignores important concerns that should be addressed. 

Finally, although we could have long debates about whether slickwater fracturing--a common technology initially developed in Texas in the 1990s--is "new," it is certainly newer than certain other oil and gas technologies, and its widespread use is an even more recent development. The technique, which is now applied to shales and some tight sands around the country, introduces new activities to oil and gas development, including higher quantities of water consumption, the transport of new chemicals to well sites, and the production of more waste to be stored and disposed of.  Combined with horizontal drilling, it also creates new opportunities, including less surface disruption and associated benefits, such as the avoidance of sensitive habitat and reduced habitat fragmentation and erosion.  So there are new benefits and costs, but it seems unproductive to continue to argue about whether any of this is really "new."  The fact is that we're in a boom, which is creating important jobs and growth but also environmental and social concerns. 

States have responded to the boom in a variety of ways.  Ohio, which disposes of large quantities of drilling and fracturing wastes in underground injection control wells, recently proposed new rules for these disposal wells (which are regulated under the Safe Drinking Water Act) after experiencing several earthquakes.  West Virginia has published new fracturing rules, and North Carolina's Department of Environment and Natural Resources issued a draft report and recommendations as the state's politicians continued to consider lifting the horizontal drilling ban. Colorado's Governor Hickenlooper, in turn, has initiated a task force to address local and state regulation of oil and gas development and (impliedly) potential jurisdictional conflicts. For more discussion of state regulation and developments over the past few years, see American Law and Jurisprudence of Fracing (authored by, among others, fracing expert Professor Chris Kulander of Texas Tech University School of Law and since published by the Rocky Mountain Mineral Law Foundation) and (shameless self-plug) this regulatory analysis funded by the University of Texas Energy Institute and a resulting article.

There has been some activity at the federal level, too.  The Bureau of Land Management has published draft fracturing guidelines, and the Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board issued a helpful report last November.

All of these developments continues to raise broader legal and policy issues, such as questions about races to the bottom or top (Ohio boasts of having "among [the] nation's toughest" brine disposal rules, while New York speaks of lessons learned from Pennsylvania and proposes more stringent regulation in some areas), cooperative federalism, regional regulatory options, and public choice concerns at all levels.  Whether the boom is new, or simply reminiscent of previous domestic fossil fuel production cycles, I hope that we'll continue to see more legal scholarship in this area.  In addition to Betsy Burleson's and Chris Kulander's work mentioned above, Patrick McGinley has an excellent article on regulatory takings and shale gas (19 Penn. St. Envtl. L. Rev. 193),  Emily Collins has offered an extremely useful analysis of Marcellus issues, David Spence thoroughly explores the federalism issues in a University of Pennsylvania Law Review article, Richard J. Pierce, Jr. offers an optimistic and interesting account of shale gas, and Susan Sakmar addresses international issues and the potential for U.S. regulation as a model.  Beyond traditional legal scholarship, the University of Colorado Law School has proposed best management practices for hydraulic fracturing. As always, in the limited space of a blog post I likely have omitted very important legal scholarship and projects, and I welcome comments.

-Hannah Wiseman, Florida State University College of Law

In Case You Missed It - Week of March 18 - March 24

* A recent report details that annual deforestation rates in the Congo basin have doubled since 1990. 

* The Organization for Economic Cooperation and Development recently stated that water pollution from agricultural operations is on the rise and is costing billions each year.

* The Wall Street Journal issued another "error-riddled" editorial - this time on wind energy. Find a rebuttal here.

* Ocean acidification is worse than it has been for 300 million years.

* How dimming road lighting can save money and reduce carbon emissions.

* Looking for a neat way to flunk that special someone in your class this exam season? Try the Tolkien way.

U.S. Nuclear Energy at the Epicenter

Just over a full year after the earthquake and tsunami struck the Fukushima Daiichi plant in Japan on March 11, 2011, U.S. nuclear energy has found itself at the epicenter of a new legal storm that is quietly brewing here at home. The storm is far-reaching. It raises some new issues previously not faced domestically, or not faced as sharply as they are about to be, and also resurrects many that have dogged nuclear power for years.

One emerging problem is what to do with aging plants. Of the 104 reactors running in the United States, 52 have been in operation for 30 or more years. Another 42 have been running for at least 20 years. With no new reactors built here for over a decade, the U.S. nuclear fleet is quickly getting older. Nuclear engineers will tell you that most of these plants can operate safely for many years to come. That may be true -- and necessary, if we are serious about climate change mitigation. But it raises the question of what our approach to nuclear power should be. And for those facilities that do shut down, how quickly should they be decommissioned? The New York Times reported this week that many facilities lack sufficient funding to decommission, in part because of the economic downturn.

Related is the question of whether existing plants should be relicensed. The Atomic Energy Act allows plants to have initial licenses of 40 years, and many facilities whose initial licenses have begun to run have sought permission to extend the life of their plants. This last Wednesday, the 40-year initial license for the Vermont Yankee facility expired. The plant continues to produce energy under a 20-year extension granted by the NRC last year. But, citing Fukushima as a reason to shut down the plant, protests over the facility's continued operation have grown, including 130 arrests of protestors that were made at the facility this week.

This itself re-raises the longstanding dilemma of who decides whether we have nuclear power in the U.S. Vermont is trying to shut down Vermont Yankee, and politicians have made similar threats for other plants in the U.S., including in New York. The Vermont effort is now in federal court, with an initial decision in January that found Vermont's law preempted and, thus, allowed Vermont Yankee to continue running. Certainly that lawsuit is worth watching, but going forward it highlights how divisive nuclear power can be. Three decades after it was handed down, the Supreme Court's decision in PG&E v. State Energy Resources Conservation & Development Comm'n, in which the Court ruled that federal authority over radiological safety is exclusive and that states can foreclose nuclear plants only for non-radiological safety-related concerns, is as pertinent as ever.

This all is on top of other continuing disputes over nuclear power in the U.S., including whether the DOE can withdraw its license application for Yucca Mountain, what regulatory changes should be made to eliminate safety concerns exposed by Fukushima, and, more broadly, whether the Carter-era ban on fuel repocessing should be abandoned or an entirely different solution to storing spent nuclear fuel should be pursued.

A year out, Fukushima's ripples continue to spread.

-Lincoln Davies

Wildland Fire Law and Policy

The year after I graduated from college, I had the pleasure of spending a year serving in the AmeriCorps National Civil Community Corps. We worked in teams on different community service projects in different parts of the country. I happened to be on the “fire team.” This meant our thirteen person crew could be called away from a tutoring, trail building, or habitat restoration project to lend a hand should a wildland fire arise. We called ourselves the “Lucky Thirteen.” Sure enough, that summer I found myself hauling my 45-pound pack alongside experienced firefighters in the Great Smoky Mountains of Tennessee and North Carolina, digging line through the night in an effort to contain flames.

The experience forced me to face the conflicts between forests and human life and property. However, what I did not realize at the time is how well fire demonstrates the sheer complexity of the interaction between human landscapes and ecosystems. Fire can impair ecosystems and scatter wildlife, displacing human sustenance, recreational, and other needs. Yet fires also have fostered and shaped the evolution and development of many organisms. For instance, one species of pine tree produces cones that are so tightly sealed that they can only be opened—and thus their seeds dispersed—by the heat that fire brings. These types of complexities have set up important and difficult policy debates on how the law can best serve public and private objectives.

Fueled by high winds and record temperatures and drought last fall, the most destructive wildfires in the history of Texas—which covered an area the size of Connecticut—have reinvigorated these debates. I am pleased to announce that Texas Wesleyan’s new Journal of Real Property, for its inaugural symposium, has assembled an impressive group of scholars (listed below) to address many of the outstanding questions surrounding wildfire law and policy. The event will take place tomorrow, March 23, 2012, and the journal will publish the panelists’ articles this summer.

-Tim Mulvaney

Supreme Court Decides Sackett v. EPA Unanimously in Favor of the Petitioners

With thanks to Rebecca Bratspies for bringing the Scotus Blog post on this decision to the environmental law professor's listserve, I wanted to highlight excerpts of key passages from today's unanimous decision in Sackett v. EPA authored by Justice Scalia, as well as from the concurrences by Justices Ginsburg and Alito.  As the Court makes clear in its discussion of focus and scope, the opinion is narrowly framed.  However, even with a narrow framing, as has been discussed actively on the discussion list this afternoon, the opinion likely will have significant practical implications for EPA enforcement efforts under this and other similarly framed environmental statutes.

Focus and Scope of the Opinion by Justice Scalia:

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under §309 of the Clean Water Act, 33 U. S. C. §1319. The order asserts that the Sacketts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the property; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.

I

The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per day for each violation.” §1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to$37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.

The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order—we do not resolve the dispute on the merits.

Holding:

We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Analysis of Final Agency Action:

The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” U. S. C. §704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “‘determined’” “‘rights or obligations.’”....Also, “‘legal consequences . . . flow’” from issuance of the order....The issuance of the compliance order also marks the “‘consummation’” of the agency’s decisionmaking process.

Analysis of Adequacy of Remedy

The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U. S. C. §704. In Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under 33 U. S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possible route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for action already taken by another agency. The Government, to its credit, does not seriously contend that other available remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute.

Analysis of Whether CWA Precludes Review

Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to]its express language.” The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review.

The Government first points to 33 U. S. C. §1319(a)(3),which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter....It is entirely consistent with this function to allow judicial review whenthe recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice.

The Government also notes that compliance orders are not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress therefore viewed a compliance order “as a step in the deliberative process[,] . . . rather than as a coercive sanction that itself must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanction....As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end....

The Government further urges us to consider that Congress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administrative penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.

Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediationthrough voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review....Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

Key Passage from Justice Ginsburg Concurrence:

The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

Key Passage from Justice Alito Concurrence:

Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.

Hari Osofsky

Embarking on an Exciting New Adventure in an Environmental Hot-spot

At the risk of engaging in shameless self-promotion of my home institution, I've had the fortune to spend this week at my new place of employment starting June 1, the LSU Law Center. I grew up only four hours from Baton Rouge, in south Alabama, so this move is very much like going home. So, on a personal level I am ecstatic to be moving to this part of the country. More importantly, however, the LSU Law Center is making some very exciting strides toward developing a robust environmental program. The Law Center is currently seeking to fill a new endowed Nesser Chair in Energy Law. My appointment will be a joint one with the LSU School of the Coast and Environment, where I will also be teaching courses. We plan to cross-list a variety of environmental law related courses so that graduate students and law students can meet in the same classroom - to have clients talking with their lawyers prior to graduation. As this blog has recently highlighted (here and here), students at the LSU Law Center have recently formed the new LSU Journal of Energy Law and Resources, which is, of course, a natural home for an energy journal considering the energy sector presence in Louisiana. LSU will be hosting the 59th Annual Mineral Law Institute this week, and later this month Dave Owen and I will be participating with others in the Lousiana Law Review's Coastal Land Loss Symposium.

So in short, I am excited about the many environmentally focused activities taking place at the Law Center. And this focus is well-warranted considering Louisiana's vast forest, wetland, and biodiversity resources, its vast energy resources and production sector, coastal land loss issues and related climate change impacts along the Louisiana coast, the amount of international trade that goes in and out of Louisiana ports and up and down the Mississippi River, and the fisheries industry off the Louisiana coast, among a variety of other environmental issues in the state. With the great environmental faculty and programs at Tulane Law and Loyola New Orleans College of Law nearby, there is a fantastic opportunity for inter-institutional synergies in what is truly an environmental hot-spot right here in our own backyard. 

- Blake Hudson

The USD 99 million versus USD 3 billion nuclear question

So it has come to pass...the Tamil Nadu government has cleared the nuclear power plant project in Kundankulam. The Chief Minister of Tamil Nadu, Jayalalitha, who had until now demanded the central government and the Indian Atomic Energy Commission to provide satisfactory explanation about safety measures, has reportedly decided, after perusing materials submitted to it, that the plant is safe. She has reportedly also dismissed any risk of an earthquake or tsunami hitting the region. Of course, since protestors who allege that there is no disaster management plan as required legally for those living within a 30 mile radious, the government decision is not entirely persuasive. 

So, in an effort to persuade local villagers, the Tamil Nadu government is reportedly offering nearly USD 99 million (INR 500 crores) worth of infrastructure building, including provision of cold storage to local fisherfolks for storing fish, construction of houses, building roads, and repairing their boats. In return for this bargain, the construction of the USD 3 billion (INR 1300 crores) nuclear power project will proceed. The government apparently has also imposed a Section 144 restriction on protestors. Section 144 of the Indian Penal Code (IPC) punishes anyone from joining an unlawful assembly with a deadly weapon with two years imprisonment or fine. Peaceful protests, however, are reportedly continuing and several, including scientists and villagers, have gathered inside the plant in protest. Their demand? To repeat: that the government and India's Atomic Energy Commission provide a disaster management plan for at least those living with a 30 mile radius of the plant site. A full newsreport is available here.

Since I have not had an opportunity to thoroughly examine the government documents or interact with those in opposition, including petitioners, I will refrain from giving my two cents worth on the legality of the issue. But, I will admit that I was especially intrigued to read at the same time reports on Kudankulam and a special report on nuclear energy published by the The Economist in its March 10th issue. (I would highly recommend the report, The Dream that Failed).

Unlike the Indian government, the authors of the The Economist report have actually cooled to the idea of nuclear energy; a source of energy that they admittedly once termed as a source that was "as safe as chocolate factory." (This was pre-Johnny Depp). What is especially striking is their observations on the regulatory implications, notably:

1. That a nuclear energy plant is simply not feasible without government support, backing, subsidy, or initiative, because of the high risk and associated costs.

2. In relation to the above point, the report notes that costs are usually managed in the form of subsidies and limited liability.

3. That with so much at stake, the accountability and transperancy generally suffer. They point to Japan, a developed nation, as an example of dismal failures on that front.

After reading both the reports together, I am left with one thought--how do we begin to assess what is in a nation's self-interest in a time of energy reforms? Regulators are putting a lot in stake in the hope of promoting development and competition. Nuclear energy is involves serious high stakes risk. The chances may be that an accident occurs once every two decades. But, the devastation is often irreversible. Should we then regulate nuclear energy as any other form of energy? I am still thinking... 

~DB~

 

 

In Case You Missed It: Week of March 11 - March 17

The Earth Policy Institute reported that wind energy developers installed a record 41,000 megawatts of electricity-generating capacity in 2011, bringing the installed capacity to a level that can meet the residential electricity needs of 380 million people at European consumption levels.

One year after the nuclear accident in Japan, some analysts suggest the incident only dampened an already-diminishing desire to build new reactors in the U.S., while others find ending nuclear ambitions too hasty a response. Meanwhile, key stakeholders in Japan’s nuclear industry alleged that the disaster was avoidable.

In a draft EIS, staff of the Federal Energy Regulatory Commission endorsed a proposed natural gas pipeline through densely populated sections of northern New Jersey and New York City, despite opposition by groups raising safety concerns in both states.

As explained in the Washington Post, among other media outlets, political quarrels over the causes of and remedies for rising gas prices continue.

The Daily revealed that the U.S. Department of Agriculture was buying 7 million pounds of “pink slime”---a gelatinous, ammonia-treated mix of connective tissues and beef scraps that is used as filler in a significant percentage of supermarket ground beef---for school lunches this year.

The U.S. Commerce Department approved catch limits for more than three dozen species in the South Atlantic from Florida to North Carolina.

Less than two months after wolves in the Great Lakes region were removed from the federal endangered species list, the Wisconsin State Assembly approved a bill that would open the way for a wolf hunting and trapping season.

Fukushima and Burning Questions

This week, National Public Radio aired the first of a four-part series entitled BURN:  An Energy Journal.  The first, aired on the one-year-anniversary of Japan’s earthquake, focused on Fukushima, asking what we’ve learned, and what’s next.

Also this week, the National Council on Radiation Protection & Measurements held its annual meeting, with a focus on two events:  a study showing medical exposures to radiation now account for about 50% of the United States population’s annual radiation dose; and the accidents at the Fukushima reactors and storage facilities.  Both issues raise questions about lessons learned and best practices going forward (and look for a later post on low-level radiation exposure). 

Here’s a sample of the law, policy, and science flurry of activity over the past week or so that’s focused on some of the enduring questions surrounding nuclear technology made especially salient by Fukushima’s anniversary:

• Scientific American:  1 Year Later, What Does Fukushima Mean for Nuclear Research?
• The journal Science published a study entitled Nuclear Fuel in a Reactor Accident, which discusses research priorities for developing predictive models of radionuclide behavior during and after accidents
• A U.S. Geological Survey study measured minimal amounts of fallout in U.S. precipitation following Fukushima
• Lincoln Davies’s piece Beyond Fukushima: Disasters, Nuclear Energy, and Energy Law appeared on ssrn
• National Geographic published an article exploring energy shortages in Japan

What are the most pressing issues for nuclear technology? What have we learned? And by the way, does your answer depend on how you perceive risk?

 

--Emily Meazell

Teaching Environmental Law Case Studies

Several weeks ago, Lincoln posted about bringing practice into the classroom.  On that theme, I thought I’d say a few words about a teaching approach I’ve been using for several years. To preview the punchline, I think it works well; I’m happy to share resources with other interested professors; and if there’s interest from others, I think creating a website for sharing teaching materials would be worthwhile.

The basic approach involves using case studies.  That’s nothing new—the Stanford Law School environmental case studies series (which I love) has a whole library—but the studies I’ve created are different in a few ways.  Most importantly, I usually divide the students into teams, some of which have shared interests and some of which are in adversarial positions.  I also usually create some sort of hearing or other proceeding at which the students will speak, and designate a few students to play the role of the decision-making body.  Often the “hearing” is somewhat contrived, but it still gives students a chance to practice speaking before,and answering tough questions from, a panel of decision-makers.  Usually at the end of the class the decision-makers explain their resolution, and then we discuss arguments, tactics, and the relevant substantive law.

I think this approach has several benefits. 

- It’s fun for students.  Sometimes by the second year of law school, and often by the third, students are burned out on traditional lecture-and-discussion classes.  Case studies, my students have repeatedly told me, are a welcome break.

- Students get to practice speaking.  In a normal quasi-Socratic class, students speak for only a few sentences at a time, and the dialogue format, while better than pure lecture, doesn’t resemble the ways lawyers communicate in actual practice.  These exercises give a chance to practice oral advocacy.

- Students get to practice identifying parties' interests.  Environmental and natural resource disputes are often complex and multilateral, and it isn’t always obvious what positions a client should take, what positions potential opponents or allies will assert, and where opportunities for collaboration or compromise will arise.  Case studies provide a good opportunity for that sort of strategic thinking.

- Students challenge each other.  Perhaps it's just the culture of my law school, but I wish students were a little more willing to disagree.  A case study with an adversarial format quickly solves that problem.

- Students prepare better.  A little bit of competition does wonders to motivate students to read more carefully and critically, particularly when the reading involves the sort of dense statutory or regulatory materials that practicing environmental lawyers often confront.

- Case studies provide a good foundation for writing assignments.  In my seminars, I’ve started asking students to write bench memos, client memos, or advocacy letters based on case study fact patterns.  Students have told me they like having their written work approximate real-world legal writing.

- I don’t know what’s going to happen.  The best case studies are usually a little bit unpredictable.  That keeps the experience fresh for me as a teacher, even if I cover the same studies year after year.

There’s a downside, however, and that leads to a pitch.  Writing case studies is a lot of work.  In my first two years of teaching, while I was possessed of pre-parenthood energy levels that now seem unfathomable, I wrote a whole bunch of studies, including a set of water resource management case studies that now take up half of a course.  My pace has slowed considerably.  But I’d like to use more in my classes (and would be happy to share,and get external feedback on, the ones I’ve already created), and I’m wondering if other professors are generating similar materials.  If they are, I also wonder if other professors would be interested in setting up a website where case studies could be shared.

If you’re interested in seeing a sample of the kind of case study I’ve used, you can click on the links that follow.  This study addresses NEPA compliance in an urban environment. This one addresses water marketing (along with the case study, I also ask students to read articles promoting and questioning water marketing).  This one (which I just finished writing this morning and haven’t test driven yet) addresses offshore oil exploration.

-Dave Owen

Call for papers--LSU Journal of Energy Law and Resources

Louisiana State University Paul M. Hebert Law Center is inviting articles for its inagural issue of the Journal of Energy Law and Resources. Details regarding the submissions and deadlines are available here:

Download LSU Journal of Energy Law and Resources

~~DB~~

Getting to the Questions of Green Schools and Student Performance

Recently, editors of this blog have reported on some of the impressive sustainable efforts of schools around the nation.  Perhaps because I am fortunate to have two of the best little boys on the entire planet, I think the subject matter is worth an ongoing dialogue.  Rachel Gutter, director of the Center for Green Schools at the U.S. Green Building Council, explains the charge: “With so many of our country’s schools in disrepair, it is critical to highlight the importance of providing our children with healthier, more sustainable educational environments that enhance learning.”

On February 27, 2012, co-authors Lindsay Baker and Harvey Bernstein - on behalf of the Center for Green Schools at USGBC and McGraw-Hill Construction – released a report entitled, The Impact of School Buildings on Student Health and Learning: A Call for Research. The report addresses the very important question of how we research school building design, maintenance, and operations to assess and maximize the relationships between building performance and student health and performance.  The report highlights the state of research on the subject and identifies areas where attention to building performance may reap substantial rewards for our children.  In particular, the authors provide an inventory of student needs in the classroom based on how students hear, breathe, see, feel, move, think, and learn.  The authors also identify the roles and responsibilities of the various stakeholders in researching the impacts of buildings on childhood education:  school staff and leaders; teachers and students; building professionals; researchers; governmental agencies; and other supporting networks and organizations. The paper suggests a need and basis to account for the already 2,300 schools across the nation that are already participating in the USGBC’s LEED green building program.

One take-away from the report is that the information needed to complete research on this relationship is becoming easier to access, at least in part because high-performing buildings are becoming an easier sell to higher education administrations.  At least, sustainable initiatives are quite popular and stimulated on the campuses of higher educational institutions.

Nevertheless, to many the ultimate challenge remains the cost, a nagging obstruction that is exacerbated by the growing price tag on higher education.  However, the evidence on cost savings associated with energy efficiency continues to grow.  For example, Gregory Kats argued in 2006 that “Green schools cost on average almost 2% more, or $3 more per ft2, than conventional schools. The financial benefits of greening schools are about $70 per ft2, more than 20 times as high as the cost of going green.” More recently, the American Council for an Energy-Efficient Economy and the Appliance Standards Awareness Project recently released The Efficiency Boom: Cashing In on the Savings from Appliance Standards, in which it reported that the existing energy efficiency standards governing appliances will net consumers more than $1.1 trillion in savings cumulatively through 2035.  New and revised energy standards will improve these savings, resulting in typical household savings of over 180 MWh of electricity and over 200,000 gallons of water between 1995 and 2040.

An equally promising trend concerns school investments in “Green Revolving Funds” to facilitate cleantech and other sustainability improvements on campus.  Harvard’s $12 million Green Loan Fund is self-described as follows:

The Loan Fund provides capital for high-performance campus design, operations, maintenance, and occupant behavior projects. Basic project eligibility guidelines state that projects must reduce the University’s environmental impacts and have a payback period of five to ten years or less. The model is simple: GLF provides the up-front capital. Applicant departments agree to repay the fund via savings achieved by project-related reductions in utility consumption, waste removal, or operating costs. This formula allows departments to upgrade the efficiency, comfort, and functionality of their facilities without incurring any capital costs.

The number of schools utilizing the GRF model has been growing steadily, aided in large part by AASHE’s Billion Dollar Green Challenge. Of course, the GRF model may not suit every school, at least because the initial investment may feel like the type of discretionary spending that simply is not available.  Ideally, the lessons learned from existing and contemplated green schools, the predicted market shifts, and the associated forward-thinking will outgrow this misperception.

- Keith Hirokawa

100 days to Rio +20

I have begun following the preparations for the United Nations Conference on Sustainable Development (Rio +20) which will take place in Rio de Janeiro, Brazil in just about 100 days. I wish I could be there, particularly because I know Brazil pretty well from having written a book about it!

So what’s going on in the lead-up to Rio +20 and what are the expected outcomes?  To begin with, it seems important to note that the first Rio conference in 1992 set a very high bar.  That conference -- formally called the United Nations Conference on Environment and Development (UNCED) and informally called “The Earth Summit” – produced an incredible number of key documents in international environmental law including the Framework Convention on Climate Change; the Convention on Biological Diversity; Agenda 21; and the Rio Declaration on Environment and Development.

Later this month, governments will hold their first round of ‘informal-informal’ negotiations on the zero draft of the Rio+20 outcome document at the UN Headquarters in New York.  The 19-page 128-paragraph zero draft, titled “The Future We Want,” was released on January 11.   Aside from the preamble paragraps of Part I, it has four major sections.  Part II is about reaffirming the principles of Rio and assessing progress on previous governmental commitments relating to sustainable development. Perhaps the most interesting, and certain to be debated, paragraph here is the section's final one, calling for a "global policy framework requiring all listed and large private companies to consider sustainability issues and to integrate sustainability information within the reporting cycle."

Part III regards one of the Conference’s two themes, “a green economy in the context of sustainable development and poverty eradication.”  The United Nations Environment Programme (UNEP) has previously defined green economy to be not just about environment and economy, but also about equity:  “A green economy is one that results in improved human well-being and social equity, while significantly reducing environmental risks and ecological scarcities.”  Yet, I still find myself wondering whether questions of equity will get marginalized with this new "green economy" framing.

Part IV regards the Conference’s other theme, namely “the institutional framework for sustainable development.”  Here a couple interesting alternatives are being debated to strengthen relevant UN institutions.  Governments may either affirm the role of the Commission on Sustainable Development (CSD) or transform the CSD into a Sustainable Development Council that would serve as the authoritative, high-level body for consideration of matters relating to sustainable development (see a relevant issue brief here).  Also, governments may agree either to strengthen the UNEP or to replace it with a new UN specialized agency for the environment, i.e. a World Environment Organization (relevant issue brief here).  Other specialized agencies linked to the UN include the FAO (Food and Agriculture Organization), the ILO (International Labour Organization), the IMF (International Monetary Fund), UNESCO (UN Educational, Scientific and Cultural Organization), and the WHO (World Health Organization).

Finally, Part V is entitled "Framework for action and follow-up."  It mostly consists of a list of 15 key issues and areas such as food security, water, energy, cities, natural disasters, climate change, and education.  It proposes a set of global Sustainable Development Goals to be devised by 2015, with progress "measured by appropriate indicators and evaluated by specific targets to be achieved possibly by 2030."

Of course, a lot of action is going on in the realm of non-state actors as well. I’ll save my remarks on that action for another post, and I’ll close with a few quotes from governmental and UN actors at the first Rio conference.  I am hoping that Rio +20 communicates a similar sense of urgency!

        - We cannot betray future generations. They will judge us harshly if we fail at this critical moment. (Gro Harlem Brundtland, Prime Minister of Norway, UNCED, 1992)
 
        - ...we can waste the planets resources for a few decades more...we must realize that one day the storm will break on the heads of future generations. For them it will be too late. (UN Secretary General Boutros-Ghali, UNCED, 1992)

        - Every bit of evidence I've seen persuades me we are on a course leading to tragedy. I don't agree with those who say the status quo is the answer. (UNCED Secretary General Maurice F. Strong, UNCED, 1992)

- Lesley McAllister

21st Century Statelessness

The BBC's most recent article,"Kiribati mulls Fiji land purchase in battle against sea," describes the more novel land purchases that climate change forces some to consider.  The article describes Kiribati's 'last resort' option for moving their population, while keeping some communities intact.  I have written on this topic and offer one short essay reposted here.

“Drowning” Nations: Climate-Induced Migration and the Advent of 21^st Century-Statelessness

Migration of peoples and communities due to climate change may have dramatic effect on the globe in the next half-century.  It is estimated that some 200 million people worldwide may be on the move because of increased storms, flooding, sea level-rise, and desertification.  For some small-islanders the perils of migration will be made worse by the loss of the State.  In other words, while displacement within and across borders may be a compulsory journey for many ‘climate migrants,’ small-islanders may be on the move absent a country to which to return.

Of particular concern are island nations in the Pacific and Indian Oceans—including, Tuvalu, the Maldives, Kiribati, and the Republic of the Marshall Islands, among others.  Already grim climate forecasts suggest that they may face challenges to their existing livelihoods, which are heavily dependent upon coastal resources.  Sea-level rise, coastal inundation, seawater intrusion into freshwater sources and soil salinization compromise freshwater availability and adversely affects coastal agriculture.  Indeed, this is already occurring in some Pacific island communities. 

These climate change impacts will exacerbate pre-existing vulnerabilities typical of nation-states of similar size and stage of development—with small economies, highly dependent on imports and weather-dependent exports.  For some states, however, climate change threatens their very survival.  Juxtaposed with their infinitesimal contribution to global emission, the threats to their existence are significant when viewed through any ethical, legal, or geopolitical lens. 

It has been 20 years since the Intergovernmental Panel on Climate Change first stated that the “gravest effects of climate change may be those on human migration;” yet the international community has made no legal or political progress on the issue in the interim.  A number of challenges inherent to the migration discourse aid this political lethargy.  A persistent lack of information undermines the conversation in three main respects:

(i) Estimating the number of people and reasons why they may need to move.  While 200 to 250 million climate migrants by 2050 are the most widely cited numbers, estimates vary greatly – from a relatively small 25 million to a high of one billion depending on the greenhouse gas emissions scenarios employed, among other factors.

(ii) Identifying the type of migration that an arbiter can directly and causally link to climate change versus the normally multi-causal influences on migration.  The many potential and overlapping causes of migration confound settled numbers for displacement, both current and estimated.  Deteriorating environmental conditions interact with other relevant factors, including levels of development, governance, and the capacity for individuals, communities, and countries to adapt to external pressures, climate-related or otherwise.  Further, demographic markers, such as age, sex, culture, education level and work experience as well as general risk perception and risk aversion, play an integral part in the decision and ability to move.

Finally, (iii) Affixing the appropriate term for those who may move.  To the extent that one could directly link a given climate-related storm, for example, and the displacement of peoples in its path, there is no agreed upon definition for those dislocated.  “Climate refugees” has been the mostly widely used term in popular discourse, which certain scholars vigorously defend.  From a law and policy standpoint, however, the term “refugee” is not an accurate reflection of the legal status of these migrants.  In fact, those dislocated due to impacts reasonably related to climate change have no legal status at all.  Finding an appropriate term is vital, however, as clearly defined and articulated legal categories delimit the rights of individuals and the concomitant obligations that bind relevant states and the international community.

With these challenges and the absence of empirical information, the plight of climate migrants is easily sidestepped.  This might continue to occur in the larger context of global migration.  For small island states, however, there are myriad reasons to act now.  In particular, for certain small islanders, the assumption that climate impacts may lead in a linear way to migration is clear. 

In the extreme scenarios that small island states face, there exist again significant gaps in the current legal infrastructure.  There are international law regimes that govern issues of deprivation of nationality following the succession of a state, for example.  There are none, however, that govern circumstances in which no successor state exists and the predecessor state has disappeared.  When island states are no longer inhabited and the population is permanently displaced to other countries, it is unclear whether they may become stateless persons under international law or if they become merely landless citizens of a state that no longer exists.  An international or regional legal regime, swiftly conceived and implemented, is vital to resolve this kind of question.  The complexity of the issue and the immediate threat of climate change call for early efforts at planning and coordination.  The alternative is disorganized and insufficient aid that might come too late.

-Maxine Burkett

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:

• "Every second breath you take is provided by the ocean."


• "We have entered a new geologic age -- the anthropocene era."


• "The Gulf and other coastal waters have long been a dumping ground for human activities."


• "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."


• NOAA "has begun now issuing seasonal red tide alerts in the Northeast."


• "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."


• "It's not funded, but we have a national ocean policy."

"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council

• "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."


• "The economic benefit of the ocean is huge, and it is just beginning to be documented."


• "Everyone has a stake in the oceans."


• "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.


• "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.


• "Marine mammal issues will increasingly affect marine activities, especially shipping."


• "We need to balance that growing need for resources and food and energy with those areas that already have resources."


• "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

• "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."


• "The problem is we have one ocean but many governments."


• "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."


• "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."


• "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."


• "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.


• Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.


• "Australia is also using the Reef as a reason to engage in climate change mitigation."
• An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

Jeremy Lin and Environmental Cases at the Supreme Court

Jeremy Lin’s stunning rise from an undrafted Ivy Leaguer to an international basketball sensation is the stuff of legends. Having received no scholarship offers out of high school, Lin enrolled at Harvard and enjoyed a relatively successful career on the hardwood in a conference with a reputation, let’s say, for things other than sports. A major professional team last drafted a Harvard player in 1954, and, as noted above, Lin did not end that drought. Lin’s recent successes with the NBA’s New York Knicks are nothing short of remarkable.

As “Lin-sanity” first took hold across the country and around the world a few weeks ago, I had the pleasure of participating in a symposium on judicial takings theory at Widener University School of Law. I found the original impetus for the Widener conference---the U.S. Supreme Court’s unexpected decision to grant a writ of certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection---mirrored the story of Lin’s emergence in both its unexpected nature and its potential to transform perceptions about longstanding institutions.

The ultimate decision in Stop the Beach resolved very little. The Court issued a unanimous opinion upholding the lower court’s rejection of a takings claim, and only mused on the existence and scope of a viable judicial takings construct in splintered dicta. While each of the three separate opinions in Stop the Beach could be interpreted as invitations to the lower courts to grapple with the complicated issues surrounding judicial takings, a review of the forty-three citations to Stop the Beach to date reveals that the lower courts have thus far largely declined these invitations. Of course, however, the conclusion to the story of the Court’s unexpected choice to take up the Stop the Beach case is, as it is in the case of Lin’s story, yet to be written.

As for the other recent cert grants in environmental cases at the U.S. Supreme Court, it was not altogether surprising---to the extent that forecasting cert grants is remotely possible---that the Court decided to hear PPL Montana, LLC v. Montana and Southern Union Co. v. United States. In the former, the Court sought to clarify the navigability-for-title test (a post on the Court’s recent opinion is available here); in the latter, the Court will assess a circuit split on whether only juries, not judges, are authorized to impose criminal fines and fees in the context of prosecutions under the Resource Conservation and Recovery Act (oral argument is scheduled for March 19th). However, the Court’s decision to hear Sackett v. EPA could be considered a “Lin-like” surprise, for it represents the two basic characteristics outlined above. First, the Court unexpectedly is reviewing a Ninth Circuit conclusion---that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders---that seemingly echoes the disposition of all of the other circuits that have addressed the issue. Second, Sackett has the potential to alter in significant ways the process of environmental enforcement under the Clean Water Act and multiple other federal environmental statutes. (The Court heard oral argument in Sackett on January 9th and has yet to issue its decision.)

To the extent readers are interested in considering the most surprising but transformational cert grants in environmental cases at the U.S. Supreme Court over the past several decades, feel free to contribute your leanings in the comments section below.

-Tim Mulvaney