Environmental Law Prof Blog

Ode to a Biodiverse Neighborhood

Image of a Buck Moth Caterpillar taken by me while on the verge of anaphylactic shock

(see image below for a Buck Moth Caterpillar being "serviced" by a member of the spider alliance)

Here is an ode to my new home

Where many a critter apparently doth roam

I've been here but a week, but am clearly not alone

The days of tamed neighborhood living are long, long gone

 

In this week raccoons have thrown a party in my trash

Many a red-headed skink and colorful salamander have crossed my path

And in our fountain water snakes have taken a bath

At the risk of incurring my wife's fearful wrath

 

Though a buck moth caterpillar nearly sent me into anaphylactic shock

I forged an alliance with spiders that made me assess the stock

Of ecosystem services that rapid development doth mock

While natural system functions are at risk of grinding to a stop

 

Lizards in the house are nothing new

Florida had its share of mosquitoes too

But I've seen far more birds in live oaks covered in dew

And far more frogs croaking in the nearby slough

 

But the news that really caught me off guard

And has made the adjustment a tad bit hard

Was the call this morning that left me quite jarred

Of an alligator spotted in our back yard

 

While living near man-eating predators may not get much worse

And my family's presence in our back yard I must now coerce

I can imagine a lot of things far, far worse

Than living in a neighborhood this biodiverse

 

....not the least of which is living in an urban jungle

- Blake Hudson

The Link Between Policy and Innovation

Most of us intuitively recognize that laws can spur technology innovation.  But what about the other way around? Is there a certain threshold of technology availability and reliability necessary to motivate policy changes? That's the topic of an intriguing blog post here, which spotlights General Electric's policy and innovation study. The study, which comes complete with a new data visualizer, provides a graphic look at the prevalence of words like "wind" and "renewables" in GE's annual reports going back to 1892.  Take a look at wind:

GE argues that the Energy Policy Act of 1992's production tax credits were key to the development of renewable energy technologies, like GE's industry standard 1.5-MW wind turbine.  It also links the availability of those technologies to policymakers' willingness to implement renewable portfolio standards in many states.

If GE is right, what investments should we be making now? What technologies need more policy support, and what new policies are ripe given the technology we have available now?

(H/T to my energy law students for bringing this study to class!)

--Emily Meazell

After Mono Lake

Like almost all environmental law students, my legal education included reading National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (1983), better known as the Mono Lake Case.  The decision seemed iconic, and not just because I was taking trips to the Sierra Nevada as often as I could.  It reads like an epic, and for years environmental lawyers and activists have treated the decision as a turning point in the history of western water law.

Then I went into practice.  For four years, I wor ked on some of California’s biggest water controversies, and the Mono Lake decision and the public trust doctrine were almost nowhere to be found.  Though I worked with environmental groups committed to increasing environmental protection of California’s water resources, we almost always grounded our arguments in statutory environmental law.  I can only think of one time that I even tried to use the Mono Lake case in a brief.  We lost, 7-0.  I did see a few other attorneys raise public trust claims in freshwater cases, but usually as a sort of add-on hail mary claim, almost like the boilerplate laches and statute of limitations defenses that defendants often include in their answers.  Those claims never prevailed.

So two years ago, when I was invited to participate in UC Davis Law Review’s symposium on the public trust doctrine, I decided to research questions that had bugged me ever since I began practicing.  Was my experience anamolous?  And how much, outside of the Mono Lake basin, did the Mono Lake Case really matter?  The results of that inquiry are available here, and the full symposium issue is here.  My conclusion, in a nutshell, is that in California (and outside of the Mono Lake basin, where the decision did matter quite a lot), there’s little documentary evidence supporting the Mono Lake case's reputation as a transformative event.

That conclusion comes with a whole host of caveats.  First, it shouldn’t diminish the importance of what the Mono Lake plaintiffs achieved.  To restore even one waterway can be a lifetime’s work, at least if you’re remarkably resourceful, persistent, and perhaps a little lucky.  Otherwise it can take much longer, or not happen at all.  Second, there’s an intriguing contrast between my research, which suggests that California’s public trust doctrine holds relatively minor importance for California water law, and Michael Blumm and Rachel Guthrie’s contribution to the same symposium issue.  They found that courts across the world have cited the Mono Lake decision, often in support bold decisions restraining environmentally destructive practices.  I’m not sure exactly what to make of that contrast, but maybe the Mono Lake decision offers an inspiring precedent where an environmentally progressive judiciary finds itself at odds with weak or corrupt legislative and executive branch institutions, but exerts less force where legislative and administrative systems are relatively mature.  Third, I did not explore whether the Mono Lake decision might have broadly changed perceptions or environmental outcomes in ways that escaped documentation.  Though this seems implausible to me, perhaps the decision shifted the paradigms of California water law while generating relatively little written evidence of that influence.

But even with those caveats, I think the research provides a cautionary tale for scholars and activists—and there are many—who would lean heavily on the public trust doctrine as a core instrument of environmental protection.  If there is slim evidence of such influence on California water resource management, why should we expect dramatic change somewhere else?

- Dave Owen

(photo courtesy of Hudson Henry (www.hudsonhenry.com))

Engaged Learning and Collaborative Teaching

A few weeks ago, my face appeared in real-time on a screen at Drake Law School in a room of eager students of Professor Jonathan Rosenbloom’s sustainability course, called Sustainability & the Law.  As a guest, sitting in my office before a computer screen and video camera, I engaged Jon’s students on issues of ecosystem governance and watersheds.  The students were spectacular, and in my view, it will be worthwhile to share some thoughts on my experience.

First, a note on the course: Jonathan has really pushed the envelope of innovative teaching methods with this course.  The course description for Sustainability & the Law provides as follows:

This course is an excellent and unique opportunity to make a positive impact on your community. You will be introduced to a diverse, emerging, and innovative area of the law, as well as creative practitioners and public officials working in this area. The course is designed to operate similar to a small firm focusing on issues relevant to sustainability. We have a real client, The Greater Des Moines Partnership, who has asked for our help. Through our representation of the client, we will explore the concept and practice of sustainability and its integration of economic, environmental, and social considerations. Students will draft actual proposals to advance issues relevant to sustainability and receive feedback from public and private sector officials, including the Des Moines City Council.

In his article that describes the teaching methods employed, Jonathan suggests that engaged learning provides a productive path toward professional competency in law students:  “The combination of practical application, collaborative learning, formative evaluation, and peer review in teaching sustainability has the potential to give the students a real understanding of the law, to get them engaged, and to have them take ownership over the content.”  The students’ successes were acknowledged last year, and due to (what I perceived to be) a great mixture of the student’s energy and Jonathan’s professionalism, I am sure this year’s students performed at least as well (and they present to the Des Moines City Council on Thursday).  Jonathan has managed to engage his students at a fairly demanding and sophisticated level of professional problem solving, and their interest may be, in large part, the impressive consequence.   Jonathan has posted the students’ final reports from this year. 

Second, I recognize that I may be a newcomer to this type of distanced participation, but I think I can still say that I found the technology surprisingly effective.  Innovative teachers have already developed uses and opportunities for video chatting in the classroom, including: experimenting with collaborative project-based learning between students at other schools; enabling access to guest speakers; conducting interviews with authors, activists, or other subjects of study; engaging students in lessons on cultural difference; allowing students to share experiences or performances; and a host of others.  Students are, or need to be, comfortable with today’s communication technologies and the accompanying opportunities, and we should be willing to bring technology into the classroom.  (As an aside, I was made aware that the projection of my image on the screen in the classroom magnified my face to extent that should have made me self-conscious.)

Both during the class meeting and in subsequent conversations, Jonathan suggested that all players win in this exchange and provided me his perspective on the additional benefits of assigning articles that were authored by the guest speaker (in this case, a piece of mine on watershed governance). The experience was interesting to Jonathan because I brought my research interests to the classroom in a way that added to the course knowledge.  For the students, participating with the author of their assignment was an honor and fostered a demanding, professional atmosphere in the classroom.  The students clearly rose to meet me at a high level of competency through their preparation.  And, although we would all love to think of our own scholarship as universally true and insightful into everything, Jonathan also reminded me that my watershed governance ideas sounded different in Iowa than in New York or Oregon.

Ultimately, the distance separating me from the Drake students may have fostered more engaging and open dialogue on the issues presented because of the newness (and uncertain boundaries) of the relationship, but it also forced us to address important cultural and norm-based differences (that we tested and tried throughout our 75-minute meeting).   These students were forthcoming on both their intrigue and skepticism about the governance model I had proposed, but through an engaged dialogue I believe we were able to find common ground on a number of issues.  Notably, much of our discussion pertained to water issues (flooding and drainage tiles) that have particular importance in Iowa. 

This was a great experience for me, and I learned a great deal about remote guest speakers, teaching in general, and my own scholarship.  My experience suggests we would all benefit from reaching out to one another as Jonathan did.   

- Keith Hirokawa

Likeable Bikeable Cities

Last month, I was in Amsterdam to give a talk, and I fell in love with the city. What I liked most was all the bicycles. The Netherlands ranks first in the world in terms of bikes per capita (about 1 bike per person), and in the mid-2000s, bicycle use surpassed car use in Amsterdam. Here's a parking garage in Amsterdam:

Spain, where I am currently living, has also made some great progress on urban bikeability. I have seen bikesharing facilities with spiffy bikes and catchy names in both Seville and Barcelona. Seville has “sevici” (with Spanish pronunciation, you can hear the "bici" for "bicicleta" in there) and Barcelona has “bicing”.  If my kids were a little older, we would have jumped on...

And then there’s San Diego, my home for the past 7 years. San Diego has perhaps the most bikeable (and likeable) weather in the US, yet never makes the list of bike-friendly cities.  Maybe this will change as one of the mayoral candidates unveiled a bike-friendly plan for the city last month.  This is one of those issues on which progressive local government can really make a difference.

- Lesley McAllister

Sustainability and Public-Private Partnerships Event at the United Nations

Patricia Salkin at the Government Law Center of Albany Law School sent out a general invitation to a special program at the United Nations on May 16, 2012 that focuses on sustainability and public-private partnerships. The afternoon program includes Elizabeth Thompson (Executive Coordinator, Rio + 20 Conference United Nations), Kenneth Bond (Squire Sanders LLP) and Scott Fein (Whiteman Osterman & Hanna), as well as Professor John Dernbach from Widener Law School (and his forthcoming book on sustainability will be released at the program), Professor John Nolon from Pace Law School, and me and Professors Patricia Salkin, James Gathii, and Alexandra Harrington from Albany Law School.  The program is free and open to the public but an RSVP is required for security purposes.  Please see the announcement for details, and I hope to see you there!

- Keith Hirokawa

Emerging Issues in the Arctic

(This series of guest posts will track emerging issues in the Arctic. Big thanks to the editors at Environmental Law Prof blog for the opportunity to share my thoughts on and impressions of goings-on at the world’s “last frontier.”)

As this blog’s readers are probably aware, climate change is causing significant reductions in both the extent and the thickness of Arctic sea ice. With these reductions a number of long-imagined economic opportunities are becoming realities. Summer shipping routes are opening up along Russia’s Arctic coast (the Northern Sea Route) and across the top of Canada and the U.S. (the Northwest Passage). Oil and gas accounting for an estimated 25% of the world’s untapped reserves are becoming accessible for offshore drilling. Tourist cruises to the North Pole, Greenland, Svalbard, the Canadian Arctic and elsewhere are increasing. Looking forward, the most remote fisheries are going to be fished. Deep sea mining beds are going to be mined. Massive deepwater ports will be built in towns you’ve never heard of. And all of this is happening against the backdrop of international negotiations over who owns what under the United Nations Convention on the Law of the Sea (UNCLOS), super hi-tech sea floor mapping, war games staged by national militaries in frozen landscapes, under-ice intelligence operations, and the complicated responses from indigenous peoples across the Arctic Circle who risk losing their traditional ways of life yet stand to make a lot of money.

So there’s plenty of action in the Arctic these days, and an increasing awareness of what is at stake. Whether you see the Arctic as a frontier to be explored in the name of science or adventure or self-reinvention, a periphery from which to extract natural resources to serve those who live closer to the center of civilization, or a romantic wilderness to preserve for the good of wildlife, future generations, and the planet as a whole, the battle is on. Decisions made in the coming years—even in the coming months—will set the terms for what happens in the region for generations to come.   

Recently, I attended a fascinating conference hosted by the Fletcher School of Diplomacy at Tufts University, titled “Voyage of Re-Discovery: Panning for Wealth in the Warming Arctic,” where more than 50 government officials, business leaders, academics and environmentalists convened to talk about Arctic energy, environment and governance issues. The conference featured an impassioned speech by Senator John Kerry, in which he advertised that he will be holding a series of hearings on ocean policy and advocated for the ratification of UNCLOS, as well as a presentation by conference organizer Crocker Snow and international sustainability maven Wilford Welch of a “Wealth of Arctic Nations Triangle Index” (a presentation of an earlier draft of the index is here). At the end of the conference, the President of Iceland, Olafur Ragnar Grimsson, delivered a thoughtful and engaging keynote, in which he addressed the history and direction of international Arctic governance (a transcript of the speech is available here).

Since 1996, the eight Arctic nations (the U.S., Canada, Iceland, Denmark, Norway, Sweden, Finland and Russia) have worked with indigenous peoples through an intergovernmental forum called the Arctic Council to protect the Arctic environment and promote sustainable development. President Grimsson argued that the Council’s model for international environmental governance is both unique and worth replicating. He began by discussing the six elements of his “Arctic model” of governance:

1) The Council has been “non-bureaucratic” in that, until recently, it had no permanent secretariat and a rotating directorship that changed every two years. (In 2011 the nations agreed to establish a permanent secretariat to increase the Council’s capacity.) President Grimsson implied that this created a political dynamic that fostered mobility and innovation. In a keen response to the President’s speech, Alexander Pilyasov, Head of Center for Arctic & Northern Ecos in Moscow, noted that this structure itself derived from, or at least shared some characteristics of, the governance structures of Arctic indigenous peoples.

2) The Council is democratic in that it has been inclusive of both indigenous peoples and NGOs in planning and research activities. Indigenous peoples are, under certain circumstances, granted “permanent participant” status in the Council. NGOs may be granted observer status. Non-Arctic states may also be granted observer status, either as permanent or ad hoc observers (Dr. Pilyasov offered an important correction here, noting that the Council is institutionally diverse, though not necessarily democratic.)

3) The Council adapted to new and emerging diplomatic norms. Both within the Council and in broader discussions, President Grimsson maintained that there is a vertical as well as a horizontal exchange, meaning that there is discussion in which civil society representatives and state and local officials engage directly with national leaders and senior members of various government bodies, both within and between nations.

4) The Council has placed an emphasis on science-based policies (or, as Dr. Pilyasov called them, knowledge-based policies). This includes the production of scientific reports, such as the 2004 Arctic Climate Assessment Report, which serve as the basis for decision-making, and scientific cooperation, as evidenced by the establishment o the University of the Arctic and the Northern Research Forum.

5) The Council has operated on the premise that all partners are of an equal status. Certain states supposedly “leave outside the room” their super-power status. 

6) The Council was, from the outset, future-oriented, and built upon the recognition that cooperation was not to settle old differences but to plan for the future for both the environment and the people of the Arctic.

This model, according to President Grimsson, has produced a number of positive results, including the development of diplomatic dialog and progressive cooperation in a formerly militarized international region; the effective integration of civil society into the governance process; the production of actual agreements, including the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic and the ongoing preparation of an instrument on Arctic Marine Oil Pollution Preparedness and Response; and the establishment of an area where Russia and the U.S. actually cooperate. There are obvious gaps in the Council’s work—there is, for instance, no coverage of security issues—and there are plenty of critics to challenge President Grimsson’s optimistic take on its structure and success, but there does seem to be evidence that this toothless, under-funded, soft law approach has produced some significant cooperation in managing a large and still largely unknown commons.  

Toward the end of his talk, President Grimsson suggested that the Arctic model might be useful in forging a new governance regime in the Himalayas and the Tibetan Plateau, the planet’s “Third Pole.” Like the Arctic, this region is defined by ice; its glaciers, extending across parts of India, Pakistan, Nepal, Bhutan and China, provide water for the big rivers of India and China and for downstream populations. Though the climate change impacts on the Himalayan glaciers are less certain than in the Arctic, there is no question of the risks posed by glacial melt. It may well be that, as President Grimsson suggested, the Arctic model affords a potential means to generate cooperation between India and China, as well as the smaller nations. 

Going a step further, I wonder if the Arctic model offers a way to think about another large-scale commons problem, namely, the emission of greenhouse gases into the atmosphere. Is this model helpful in thinking about potential ways to overcome the impasse to a comprehensive international agreement on climate change? Would the collaborative, soft law approach work? Or is this just another utopian vision of the Arctic imagination? I am, at first blush, skeptical, and for two reasons. First, Arctic nations share a geography that is visible and tangible, one that is easily comprehensible (and as President Grimsson joked during his talk, they also share the experience of Arctic winter). Everybody shares the earth, of course, but the awareness of this fact has yet to get us over the hump with climate change. Second, it feels like a step backwards, away from binding commitments, and I worry that it is too late to even consider the option. But I think it’s open for discussion, and as we move toward Rio+20, it’s a discussion worth having. What do you think? 

- Michael Burger

Walmart is Bigger than the Entire Island of Manhattan - Literally

Mother Jones recently posted this fascinating infographic on the super-retailer:

- Blake Hudson

The Good and the Bad in the BP Settlement, and the Main Course Still Ahead

 

I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.

I'd been called for jury duty.

Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.) 

Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution. 

Hard Bargaining Rewarded

The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan. 

Settlement claims are divided into those for economic loss and medical harm.  It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize.  So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.

As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.

The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.

Lost Hope for a Speedy Trial?

I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.

The Main Course

When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.) 

Is their number up? Today, not by a long shot.  But we’ll see.

--Rob Verchick  

In Case You Missed It - Week of April 16-22

- Sunday was Earth Day.

- EPA issued air pollution standards for fracking.

- The Department of Energy released a report finding that existing, non-power-generating dams could generate an additional 12 gigawatts.

- Studies documented significant deep-seal impacts from the Deepwater Horizon spill.

- EPA released an inventory of U.S. greenhouse gas sources and sinks for the 1990-2010 period.  The inventory showed that emissions rose approximately 3.2% ub 2010.

Why RPSs?

Renewable energy promotion is a fascinating topic. It raises myriad questions--from whether government should get involved in technology choice to what instruments are likely to work best, if that choice is made.

These efforts also bring a remarkable number of issues into play, not just from the environmental, energy, and climate side but from perspectives of innovation policy, investment, public goods, and energy security as well, to name only a few. Some of the questions I have found most intriguing are in instrument choice: Which laws will work best at promoting greater use of renewables (and, in turn, to help sustainable technologies reach greater economies of scale)?

In the U.S., of course, the primary mechanism has been the renewable portfolio standard, or RPS. Recently, I have spent a large amount of time parsing through the details of nearly 40 of these statutes in the U.S. It is an exercise that, I’m sure, my (excellent) research assistants find either close to torture or, if we are being more honest, one step short of Hades.

Actually, I find it to be enormously interesting, even if the work of coding statutes on a day-to-day basis is undeniably tedious. The sheer diversity in these laws becomes ever more remarkable--and blatant--with a reading of each statute. To give just two examples, North Carolina’s numerous revisions to its scheme to deal with poultry waste and Vermont’s we-don’t-need-an-RPS-oh-wait-yes-we-do seesaw between its so-called SPEED program and what looks like is going to become an RPS in the state make clear just how complex, and fraught with room for manipulation, these laws can be.

A nagging question, though, is why states adopt these laws at all. Clearly there are political considerations motivated by climate change. Increasingly, however, it seems state governments also are pointing to RPSs as a way to promote jobs, as I recently explored in an article applying regulatory race theory to RPSs.

I noticed this yesterday as my research assistant and I were going through Vermont’s statute. Several years after the state passed its first law, it added language to say that a purpose of the renewables promotion scheme was to bring industry and jobs to Vermont. If this kind of after-the-fact revision of what the law’s core aim is not expose how broadly state legislatures see the objectives of these laws, I am not sure what does.

Thus, going forward, a critical question for RPSs is not only whether they work, but also what they are trying to work toward. Notably, Joshua Fershee and Thomas Lyon and Haitao Yin have already begun to provide much more thought-through, nuanced, and insightful answers than my mere summary here can.

Certainly, it will be an area for more fruitful, and useful, scholarship in the future.

-Lincoln Davies

Recovering from Disaster

In the spring of 2011, remarkably destructive tornadoes ripped through Joplin, Missouri and Tuscaloosa, Alabama within weeks of each other.  In both cities, many lost their lives and thousands of buildings were damaged or destroyed.  Comparing the local governmental responses in these two cities one year later, David Beito, a history professor at the University of Alabama, and Daniel Smith, an economics professor at Troy University, recently authored an op-ed in the Wall Street Journal entitled “Tornado Recovery: How Joplin is Beating Tuscaloosa.”

As the title of their piece suggests, Beito and Smith contend that the “can-do spirit” of volunteerism that came in the immediate aftermath of the tornadoes “lives on far more in Joplin than in Tuscaloosa.”  They contend that Joplin’s successes stem from a “bottom-up approach, allowing businesses to take the lead in recovery,” while Tuscaloosa’s failures are the result of city officials’ efforts “to remake the urban landscape top-down” by “imposing a redevelopment plan on businesses.”  Beito and Smith praise Joplin’s “encouraging businesses to rebuild as quickly as possible,” “rolling back existing regulations,” “liberally waiving licensing and zoning mandates,” and resisting “the temptation to make ‘safe rooms’ a condition of rebuilding.”  They cite city sources suggesting that, “in Joplin, eight of ten affected businesses have reopened…while less than half in Tuscaloosa have even applied for building permits.”

Meanwhile, Beito and Smith chide Tuscaloosa’s Mayor, Walt Maddox, for declaring in the days following the tornado that “Out of the heartbreak of the disaster rises an extraordinary opportunity to comprehensively plan and rebuild our city better than ever before.”  They admonish the city for temporarily restricting redevelopment until officials could formulate and adopt a long-term recovery plan known as “Tuscaloosa Forward.”

Mayor Maddox authored a brief response, contending that Beito and Smith misrepresented a host of facts about the recovery in both cities.  For instance, Mayor Maddox boasted of Tuscaloosa’s issuing over 2,000 repair permits and over 200 construction permits in residential areas, as well as approving repair permits for 92% of damaged commercial structures and rebuilding permits for 34% of destroyed commercial structures.  He also sought to correct Beito and Smith by stating that “Tuscaloosa never implemented a moratorium and building permits were issued immediately following the storm.”

In this sense, both the Beito/Smith op-ed and Mayor Maddox’s response use the same baseline in measuring governmental action in the wake of disaster.  However, it is not clear that baseline—simply quantifying the number of, or the speed with which, permits are issued or buildings are repaired or reconstructed—is an appropriate metric for a recovery’s success.  While at the very end of his piece, Mayor Maddox vaguely referred to the long-term focus of Tuscaloosa’s recovery, it would have been interesting to hear a more spirited defense of the advantages of such an approach in light of Beito and Smith’s utter rejection of it.  It seems that expedient post-disaster comprehensive planning can breed a high quality and safe rebuilding effort that demonstrates a respect and concern for long-term consequences for both communities and individuals—and public and private property rights—and is conducted in a fair, transparent manner.

This June, the AALS will convene a “Workshop on Torts, Environment and Disaster.”  The latest mailing promoting the event tellingly, if ominously, describes Hurricane Katrina as “the opening act in what will become known as the age of disaster.”  The program is sure to tackle the many challenges associated with achieving justice for disaster victims like those in Joplin and Tuscaloosa while simultaneously assuring that communities engage in proper planning to minimize the risk associated with the next catastrophic event.

-Tim Mulvaney

Public Opinion, Weather, and Climate

Yale's Project on Climate Change Communication released a poll today on public opinion on climate change that has been receiving a lot of news attention, such as in this N.Y. Times article.  The highlights of the poll include, as described on the project's website, include:

• 82 percent of Americans report that they personally experienced one or more types of extreme weather or a natural disaster in the past year;
• 35 percent of all Americans report that they were personally harmed either a great deal or a moderate amount by one or more of these extreme weather events in the past year;
• Over the past several years, Americans say the weather in the U.S. has been getting worse – rather than better – by a margin of over 2 to 1 (52% vs. 22%);
• A large majority of Americans believe that global warming made several high profile extreme weather events worse, including the unusually warm winter of December 2011 and January 2012 (72%), record high summer temperatures in the U.S. in 2011 (70%), the drought in Texas and Oklahoma in 2011 (69%), record snowfall in the U.S. in 2010 and 2011 (61%), the Mississippi River floods in the spring of 2011 (63%), and Hurricane Irene (59%);
• Only 36 percent of Americans have a disaster emergency plan that all members of their family know about or an emergency supply kit in their home (37%).

These results raise hard questions about how to help raise public awareness about climate change science, and in particular, the complex relationship between extreme weather events and climate.  While it appears that having exposure to extreme weather events--some of which like heat waves are among more certain climate change impacts--makes people more concerned about climate change, we need to find additional ways to move beyond the sound bite discourse on this topic and help foster public understanding of nuanced scientific and technological issues. 

Hari Osofsky

Africa and International Law

I spent this weekend at a terrific conference on Africa and International Law organized by Professor James Gathii at Albany Law School. The conference had a rich mix of scholars at different stages of their careers.  The conference included four keynote addresses, including one by Judge Abdul G. Koroma, which I found particularly engaging. For those who may not follow international law decisions, Judge Koroma penned his well-known dissenting opinion in the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons case, which is available here.

What struck me about Judge Koroma's presentation was his emphasis on climate change, regarding which he indicated an Advisory Opinion could be sought of the ICJ. While he did not address the problem or the international law position on climate change in his address, he alluded to the climate change potentially presenting a threat to international peace and security.

At the same time, Judge Koroma discussed the question of human rights and the challenge of universalism. He noted that cultural relativism or cultural differences had to be considered in shaping human rights benchmarks. His provocative remarks about the limits of human rights and the legitimacy of universal claims to human rights made me think about the role of human rights in the climate change debate. Not only whether nations or people can claim a bundle of rights that are threatened by climate change, but also how cultural differences can affect the manner in which states/people claim these rights, if at all they do, and what that means for climate change.

What do I mean? In many countries, notably developing countries where the legal system is poorly developed or limited in terms of the enforcement mechanisms and remedies, there is a cultural preference to simply bear the consequences. What happens to people in those countries when consequences of climate change follow? Wither the rights of sub-Saharan Africans, for instance? I think this a huge problem. Human rights are as important as the venues available for their enforcement. Those venues are not only limited at the international level for most of the world's population, but they are also limited domestically.

An anicillary problem is that not all rights are created equal, surely. Yet, in international law such nuances appear to be subsumed under broad categories of social, political, cultural, and/or economic rights. The threat of climate change is perhaps a good time to re-evaluate the structure of human rights and the potential for acknowledging hierarchy among rights, ironical as this may sound...

Before signing off let me add that another notable presentation was made by Rugemeleza Nshala, SJD, Harvard Law School, on the state of mining in sub-Saharan Africa. It was a grim reminder of the numerous environmental and "human rights" problems in relation to natural resource exploitation. The presentations reminded me about the serious environmental problems that we continue to encounter.

As I mentioned in my own presentation on the impact of China's investment in Africa, according to the Human Genome Project we are all from Africa. We keep returning to this rich continent for our natural resources. We should not forget that Africa is also an important weathervane of our commitment to the rule of law.

~~DB~~

Some Thoughts on Coastal Land Loss

A few weekends ago I had the pleasure of participating in the Louisiana Law Review's Coastal Land Loss symposium at the LSU Law Center, along with many fantastic colleagues. I thought I would share a few thoughts I presented to the attendees on the issue (and I apologize in advance for the length), which affects Louisiana in a significant way, of course, but which is also an increasingly menacing issue of global concern (see the plight of the Maldives as just one example).

In Homer’s epic Odyssey the hero Odysseus faces a terrible choice. He must guide his men through a narrow strait and either pass close to Charybdis, a sea monster that spewed forth water three times a day with disastrous consequence, or pass close to Scylla, a beastly monster on the coast. Odysseus ultimately chose the latter fate, accepting the loss of some of his men by crashing into the coast, but calculating that he would lose far fewer men than if he took on the raging sea. U.S. citizens and policy-makers face a similarly costly choice―that of either grappling directly with increasingly menacing and encroaching seas rising due to climate change or undergoing the socially and economically disruptive, but potentially less devastating, transition to further inland. 

In this way, Scylla and Charybdis provide an accurate metaphor of choosing between the perils of the sea and the threats looming on the coast. The modern conception of this choice regards how we allocate priority on either mitigation OR rather adaptation as the primary response to coastal land loss - that’s assuming, of course, that we do not wish to take the third option of doing nothing and allowing our ship to sink. I should note that I use mitigation and adaptation differently here than they are typically used in the climate change context. In the climate change discussion more generally we use mitigation to refer to curbing carbon emissions in order to slow global warming and associated sea level rise, while adaptation typically means accepting these threats and engaging in policies aimed at reducing the harms of climate change and sea level rise.

But when we are talking about mitigating coastal land loss specifically, we have a choice to confront Charybdis in an attempt to keep the sea at bay: to design policies and invest billions of dollars to restore wetlands, to rebuild coastal lands and barrier islands through dredging and other large-scale engineering projects, or to create man-made structures such as sea walls and other mechanisms of tide and flood control, to name a few examples (all things that might be considered adaptation approaches in the more general climate change context). With adaptation of coastal land loss we have a choice to run upon Scylla and endure the hardship of, at first, slowing the rapid economic development, land development, and population boom in high risk areas of our coastal zone, and second, transitioning from already existing development and infrastructure in these areas to higher ground inland. These two options are obviously not mutually exclusive, and as the International Panel on Climate Change has noted, policies aimed at both will likely be necessary to manage climate change generally, and coastal land loss specifically. Yet the relative emphasis on either mitigation or adaptation will have drastic ramifications for not only the effectiveness of the coastal land loss response, but also for the amount and allocation of local, state, and federal financial resources. In other words, though both mitigation and adaptation are likely to be used in different areas along the coast, a great risk lies in striking the balance between the two that places too much emphasis on one or the other, potentially resulting in years of wasted effort, billions of dollars that would have been better utilized elsewhere, and a greater degree of social disruption than necessary.

A confluence of events has given rise to coastal land loss around the world, the first driver being population growth. The Low Elevation Coastal Zone is the contiguous area along the coast that is less than 10 meters above sea level.  Though this area covers only 2 percent of the world’s land area, it contains 10 percent of the world’s population and 13 percent of global urban population. In 2003, approximately 153 million people in the U.S., or 53 percent of the population, lived in coastal counties. As a result, over half the U.S. population lives within the 17 percent of land that is coastal, with some states maintaining over half their population in the coastal zone. Coastal counties as a general matter average 300 persons per square mile, far more than the national average of 98 persons per square mile. Furthermore, the population density in coastal counties has been increasing at a rate that far outpaces the rate of increased density in non coastal counties. In other words, the rate of population growth in coastal counties is disproportionate to the growth of U.S. population. Coastal population increased between 1980 and 2003 by 33 million, accounting for nearly half of the U.S.’s total population growth during that time period.  Coastal population is expected to increase by another 27 million by 2017, accounting this time for more than half of the nation’s total population increase. The rate of population growth in coastal counties outpacing that of the country as a whole creates a dramatic increase in population density along the coast.

And, of course, population growth has increased the demand for land development. Developed land in the U.S. as a whole increased by 25 million acres (34 percent) between 1982 and 1997 - an amount that startlingly accounts for more than one-fourth of all of the land developed for urban uses since European settlement (in only 15 years). Though developed land grew by 34 percent, corresponding population growth was only 15 percent, demonstrating that land consumption occurred at a rate more than twice the underlying rate of population growth. Furthermore, the gap between the two rates is growing. Between 1982 and 1992, land was developed at 1.8 times the rate of population growth. During the period between 1992 and 1997, that multiple had grown to 2.5. As described by the Pew Oceans Commission,“[i]f the relationship between land use and population in the last decade continues, there will be 68 million more acres of developed land in the contiguous U.S. than there are today . . . This newly developed acreage—equivalent to the land area of Wyoming—will almost match the amount of land developed from the founding of the country until 1983.”

Population growth and increased development make any choice between land loss mitigation or adaptation policies, and any attempt to actually implement them, exceedingly difficult. The amount of investment needed to implement mitigation policies will continue to rise, as there are more people to protect from geologic land loss caused by the encroaching seas, there is more wealth to protect in the form of residential and commercial development, jobs, and infrastructure tied directly to inland economic welfare, and more natural capital is lost to development exacerbating artificial land loss. In the same way, adaptation policies must grapple with the fact that there are more people to move out of high risk coastal areas, more wealth accumulation and investment to forestall in order to prevent development of new high risk areas, and increased economic and social inertia that makes it difficult to slow down coastal zone growth in the first instance, much less steer already anchored economic and social systems further inland. 

The second driver is vanishing wetlands. Over the last century, development has claimed over half of the wetlands in North America. The loss of important ecosystem services provided by wetlands can increase disaster risk and the negative impacts of climate change. These ecosystem services are important to both human well-being and the maintenance of coastal land—not only the physical maintenance of coastal land, but also the maintenance of its functionality. Wetlands provide a key buffer system that protects against storm surge caused by hurricanes and other weather events, dissipates and absorbs flood waters and stormwater runoff, thus protecting local communities and saving municipalities flood control expenditures. Wetlands act as an anchor for preserving coastal lands by dispersing coast-building sediment and forestalling coastal erosion, provide water filtration services that clean coastal waters, act as a major carbon sink that helps regulate the climate, provide habitat for coastal species, among a variety of other services.

Vanishing wetlands are directly tied to rising sea levels as well as increasing populations and associated development. In some U.S. states, like Louisiana, the disappearance of wetlands has compounded coastal land loss and has further synergized with rising sea levels to exacerbate disaster events seared into the collective national consciousness—Hurricane Katrina being the most recent example, of course, causing by some estimates $81 billion in damages.

The state of Louisiana is losing 6,600 acres of coastal wetlands per year. Some of this loss is naturally occurring, but the primary causes are human-made and include commercial and residential development, levees, navigational channels, and oil-and-gas infrastructure. The diversion of the Mississippi River for human-made development has diverted land-building sediment that now empties into the Gulf as far as the outer continental shelf where it cannot form important barrier islands. Other coastal states face a similarly staggering amount of wetland loss. For example, in only the last fifteen years Florida has lost 84,000 acres of wetlands to urban development—a rate of 5,600 acres a year.   

The third driver of coastal land loss is sea level rise, which is perhaps the most obvious threat to coastal lands—it is the Charybdis which we must either flee by adapting or fight by mitigating to the extent possible. Unlike most disasters however, the harmful land loss threats of sea-level rise are not immediately obvious, since its observable impacts play out incrementally over human lifetimes. This makes sea level rise arguably even more dangerous than other threats to coastal lands, at least in the sense of spurring human action. The full magnitude of harm is apparent only when temporally aggregated over periods of time exceeding any one generation’s life span. Thus it is especially difficult to forge collective action among individuals, policy-makers, and governments to avoid the disaster.

Though sea level rose .17 meters over the past century, a rate of roughly 1.7 mm/year, satellite imagery demonstrates that the rate increased to 3.1 mm/year between 1993 and 2003. In other words, the rate of sea level rise is accelerating. Since this increased rate corresponds with increases in atmospheric concentrations of greenhouse gases and temperatures over the same time period, the future impact of a changing climate on sea levels is highly variable and uncertain. Approximately 58,000 square kilometers of coastline along the Atlantic seaboard and Gulf of Mexico are less than 1.5 meters above sea level, with more than eighty percent of this coastline in the states of Louisiana, Florida, Texas, and North Carolina. North Carolina alone maintains as much land within one meter of sea level as the Netherlands. Approximately 1,600 square kilometers of land in eighty-five eastern seaboard counties lie less than a meter above current sea levels, potentially threatening approximately 4,800 kilometers of roads and 388,000 people. Over the next fifty years coastal erosion is estimated to threaten nearly 87,000 homes along U.S. coasts. On the other side of the country in California, a mere .3 meter rise in sea level would cause what were once 100-year-storm surge flood events to become ten year events.

So, given the confluence of these factors, what about mitigation or adaptation as a response? A good example of mitigation is the recently released Louisiana’s Comprehensive Master Plan for a Sustainable Coast aimed at investing $50 billion over upcoming decades to restore the Louisiana coast and attempt to mitigate coastal land loss by fighting the encroaching sea - metaphorically taking on Charybdis with full force. The Master Plan calls for a variety of actions to achieve the goal of curbing coastal land loss and actually increasing coastal land acreage, most of which are matters of human engineering aimed at either creating man-made structures to manage coastal land loss, or restoring natural processes to do so. These include projects aimed at protective levee building, bank stabilization, barrier island restoration, channel realignment, hydrological restoration, marsh creation, bioengineered oyster barrier reef creation, ridge restoration, sediment diversion via the Mississippi River and shoreline protection projects. These mitigation measures will involve the construction of numerous types of structures, such as earthen levees, concrete walls, floodgates, and increased use of pumps.  

Adaptation provides a much more simple recipe for coastal land loss, though one that is just as difficult, and in the short term likely more difficult, than mitigation – develop policies aimed at steering new development away from areas likely to be lost, and then as areas become lost or increasingly under threat of loss, retreat to higher ground. This has the potential, over the longer term, to be far less costly than investing billions in mitigating land loss in areas likely to become inundated regardless.

So, as between coastal land loss mitigation or adaptation, which should receive the greater focus? There are three reasons why we should approach mitigation in particular with caution. The first is the uncertainty regarding the effectiveness of certain mitigation actions over the long term. Take wetlands restoration, for example. Though wetlands restoration has become increasingly utilized of late, some scientists have argued that restoring wetlands often falls far short of replacing wetland functionality. Instead, they argue, we all to often use restoration and mitigation banking as justification for destroying natural wetlands that will never be recovered, leading to continued global loss of wetlands. Despite this research, in North America alone over the last 20 years over $70 billion has been spent restoring over 7 million acres of wetlands.

There are further mitigation uncertainties regarding changes in sea level rise, rates of subsidence, and effectiveness of sediment diversion projects, to name a few mitigation measures. We should proceed with caution regarding mitigation because it is an unknown quantity compared with adaptation. At least we know adaptation will be disruptive, can better pinpoint just how disruptive, and we also know that it will allow us to retreat from harm’s way. With mitigation the response will be more complex, and billions of dollars invested could over the longer term do little good.

The second reason we should proceed with caution on mitigation is the tempting political expediency that may drive policy-makers’ choice to implement mitigation policies. The Louisiana Master Plan conducted a poll and determined that 85% of Louisianans “believe it is smart to invest dollars in risk reduction and coastal restoration.” This demonstrates the intuitive appeal to the legislator for proposing and supporting mitigation policies aimed at restoring and saving the coast. On the other hand, how well-received might the legislator be who says “we need to dramatically re-think and re-structure how and where we undertake new development and we need to transition current infrastructure to lower risk areas”? Given the long time scales – relative to human lifespans – that a policy-maker’s decision takes to be proven correct or incorrect, one might say it would always be in their best interest to propose mitigation, as the upside political and governance benefits is large since you both please the populous and you likely would not be around to witness the downside if mitigation policies ultimately fail. But none of these governance and political considerations give us any qualitative indication about whether adaptation or either mitigation policies are indeed the best option for a given area. And that should be what drives decision-making, not political expediency.

The third and final reason we should approach mitigation policies with caution is the fact that failure to adapt past land use activities in the coastal zone is one of the reasons that mitigation and adaptation policies are now needed, lending support that adaptation now can avoid both costly mitigation policies as well as pre-empt the need to adapt or mitigate in the future. We are now living in a world where people build in floodplains purposefully, anticipating mitigation policies in the form of government subsidized insurance, levees and other structural solutions to bail them out of potential flooding events. These decisions result in us later being forced to make the difficult cost-benefit decision to flood one city because it would cause less damage than flooding another city – which happened recently along the Mississippi. The same holds true for the coastal zone, where we have exacerbated vanishing wetlands and rising seas by refusing to adapt to their existence and structure society around those resources, and instead have replaced natural capital with human-built capital and have subsequently sought to mitigate risks that we ourselves created. So, while adaptation may be the harder call for us to make today, our descendants would much prefer that we adapted rather than continued a cycle of mitigating risks that we ourselves create.

Ultimately, a balance of adaptation and mitigation will necessarily be a part of our response to coastal land loss. But as we weigh those respective options, we should do so honestly, with consideration to future generations, and with regard to costs and benefits over long time scales, because in some circumstances it may very well be better to run upon Scylla in order to avoid Charybdis. Especially since we know that, despite advertisers' best efforts, coastal land loss won't be as glorious as this:

- Blake Hudson

In Case You Missed It: Week of April 8-14

Rush Limbaugh and other political conservatives mock electric cars but they sold pretty well in March (NY Times and triplepundit.com).  

NOAA reported that March 2012 was the warmest March in the United States since record-keeping began in 1895. Also, the three-month period of January, February and March was the warmest first quarter ever recorded in the Lower 48 (cnn.com).

The US Forest Service published a new planning rule governing national forest management, 36 CFR Part 219 (hat tip: Rob Fischman).

There's an oil spill near a Shell platform in the Gulf of Mexico, almost exactly two years after the BP Deepwater Horizon disaster (cnbc.com).

The Food & Drug Administration released three documents regarding the use of antibiotics in food-producing animals, but the Union of Concerned Scientists and other watchdog groups are highly skeptical of the FDA's voluntary approach.   

China Environmental Experience Post Script: "Breathing Air with Heft"

Here's a quick follow up to last week's post about the air quality situation in many of China's urban areas. I thought I'd post some photographs graciously shared with me that demonstrate the point far better than my words. These were taken from the window of a Beijing resident's apartment near the center of the city. The first was taken on a clear day, with the particulate matter or "PM 2.5" smog index around 60. The second was taken a few days later when the PM 2.5 index was over 400. (For reference, as I mentioned in the original story, a bad day in Los Angeles is around 90.)

 

I just returned to Qingdao from a week in Beijing. The air quality varied widely during my stay in Beijing, complete with throat-choking chemical plumes that passed overnight to sunny blue skies with the occasional story-book cloud. But I left on a very average day for Beijing, with the index hovering between 150-200. According to the U.S. Embassy's monitor, this ranks as "unhealthy" air quality. But my friend was still happy, because, as he explained, he could see shadows and the sun...

--Erin Ryan

P.S. For the record, I also updated some statistics in the fourth paragraph of the original story.

When Agencies Can't Get Along

Last time, I posted some thoughts on Mingo Logan Coal Co. v. EPA, in which the D.C. District Court held that EPA exceeded its statutory authority when, after the Army Corps of Engineers issued a section 404 permit, EPA withdrew the underlying site specification.  I considered the administrative-law and civil discourse aspects of the opinion in the previous post, but another interesting aspect of the case is the relationship between EPA and the Army Corps of Engineers. 

Throughout the permitting process, EPA expressed concerns about the environmental impacts of Mingo Logan’s mountaintop mining project, but it never exercised its veto authority over the specification of disposal sites.  Two years after the Corps issued the permit, however, EPA sent a letter to the Corps requesting that the latter revoke the permit.  Only after the Corps refused did EPA take matters into its own hands by withdrawing the site specification—a post-permit step the court held outside the bounds of EPA’s statutory authority.

Mingo Logan involved the Clean Water Act, but environmental law relies on interagency relationships at every turn.  Moreover, these relationships exist horizontally between federal agencies as well as vertically between federal and state agencies.  Jody Freeman and Jim Rossi document a number of such relationships here, as does Eric Biber here. 

Lately I’ve been working on a project that asks how courts should respond when agencies conflict.  That circumstance can put the usual reasons for judicial deference—superior political accountability and expertise—in tension with one another so that it’s not immediately obvious which agency ought to prevail.  While it’s unusual for two agencies to be opposing parties in court, it does happen occasionally, and it seems to me that there are a number of approaches a court might take to sort out the dispute.

But in most instances, agency conflicts lurk in the background of court cases.  That is, the action agency gets sued and its behavior is the focus of judicial review.  That’s how the Mingo Logan case worked; although the court described the relationship between the Corps and EPA, that relationship had little, if any, bearing on the court’s analysis.  Rather, the court evaluated EPA’s action in the usual way—here, in terms of its conformity to the statutory mandate—with deference accorded as justified.  This has also been the approach of the D.C. Circuit faced with the Yucca Mountain controversy, and there are many more examples.  Although I’ve concluded that fidelity to statute is the proper approach in such circumstances, I admit that it’s a little unsatisfying.  Is there any way to account for another agency’s involvement? Has anyone seen any novel approaches to this issue?

- Emily Meazell

The Disappearing and Reappearing Ambiguity of Section 404

Consider a few quotes from two recent opinions addressing section 404 of the Clean Water Act.  The same justice couldn't possibly have signed on to both, could he?

Opinion 1:

"The plain language of the statute simply does not authorize this 'Land is Waters' approach to federal jurisdiction."

"Plainly, because such 'waters' had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows."

"Moreover, only the foregoing definition of 'waters' is consistent with the CWA's stated [policy of preserving the states' primary responsibility for water resource and land use planning]."

"Even if the term 'the waters of the United States' were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity." (parentheses in the original opinion)

Opinion 2:

"The reach of the Clean Water Act is notoriously unclear."

"Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act."

"But Congress did not define what it meant by "the waters of the United States," the phrase was not a term of art with a known meaning, and the words themselves are hopelessly indeterminate."

That's just a sampling, and the words aren't taken out of context.  The former opinion rejects EPA's interpretation of the statutory definition of "navigable waters" without ever conceding that the definition is ambiguous (the dissent argued that the language was ambiguous and that the Corps' interpretation should be upheld at Chevron step two, but the plurality never got past Chevron step one).  The latter opinion is entirely devoted to castigating Congress for writing so ambiguous a definition.

Of course, the same justice did sign on to both opinions.  The former quotes are from Justice Scalia's plurality opinion in Rapanos v. United States, which Justice Alito joined.  The latter quotes are from Justice Alito's concurrence in Sackett v. EPA (which no other justice joined).  Six years elapsed between the cases, but the relevant statutory language has not changed.

There is a way of trying to reconcile the two opinions, which Justice Alito hints at in his Sackett concurrence.  Perhaps Justice Alito views Rapanos as holding that one interpretation of the statute was clearly at odds with statutory language, not as holding that the statutory language was generally clear.  But that view still leaves Justice Alito in the awkward position of arguing that the Clean Water Act clearly and unambiguously did not apply to Mr. Rapanos's alleged activity (filling wetlands) but was terminally ambiguous in its application to the Sacketts' alleged activity (filling wetlands).

All of this may not amount to much, because the Rapanos plurality clearly indicated that even if it found section 404 ambiguous, it still would have rejected EPA's interpretation.  But at the very least, it seems fair for Justice Alito to acknowledge, if he decides to lambaste Congress for drafting an ambiguous statute, that just a few years earlier he seemed to think that same statutory language was not ambiguous at all.

- Dave Owen

 

One more thing that plastic trees cannot do

Katy Kuh sent me a great story about a phytoremediation project at a hazardous waste site in Macon, Georgia.   The story states:  “Next to a Macon city park, a contaminated former industrial site is being ‘greened’ twice over: Hundreds of trees were planted there recently, so their roots will act as straws to drink up contaminated groundwater.”    The parties began removing contaminated soils in 1986.  The planting program of 376 trees focuses on red maple and sweet gum trees and is intended to supplement the ongoing pump-and-treat plan.

From an ecosystem services perspective, trees are quite important to the delivery of services needed for human health and well-being.  Trees in riparian areas control erosion, provide habitat and shelter, and regulate water quality and quantity.  Shade from trees reduces sun exposure, helping to lower energy costs and prevent skin disease.  Trees capture air pollutants and filter the stressors that trigger asthma problems. Trees provide an arena for outdoor recreation and help prevent childhood obesity.  Trees provide places for recreation, social gatherings, and meaningful interaction with nature, and they are otherwise essential in mitigating the effects of urbanization.  

The IUCN writes that “ecosystems work on such a large scale and in such intricate ways [that] their services cannot be replicated effectively by technology or their impacts extend well beyond effects on other market products and indicators.” With this in mind, the message of the phytoremediation story might be that nature is being treated as an additional piece of the machinery that can help to repair the damage done by industrial pollution.  Or perhaps the story says that we should look back to nature when technology is unable to provide a safe harbor from the problems we have created.  Or maybe this story is interesting because it is surprising to so many that nature is so “sophisticated”: perhaps it says that we should cease being so surprised every time we hear that nature does it better.  My guess is that trees have a lot more to offer, and it is about time that the legal system requires valuation of nature’s services before allowing the sacrifice of these benefits.  The latter idea is captured by genetics professor Richard Meagher at the University of Georgia: “It’s really pathetic that this hasn’t been used all the time.”

- Keith Hirokawa