Environmental Law Prof Blog

Keystone XL and Eminent Domain in Texas

Opposition to TransCanada’s Keystone XL pipeline continues to unite parties that, in many other contexts, routinely clash. The latest issue surrounding the pipeline in Texas highlights the pairing of ardent private property rights activists with grass roots environmentalists.

Property rights groups and individual landowners are engaged in multiple lawsuits challenging TransCanada’s authority to condemn property in the Lonestar State for the purpose of installing pipelines to transport dense crude oil diluted with liquid natural gas before receiving the necessary federal permits to do the transporting. (As reported here on last week’s “In Case You Missed It” post, a suit is underway in Nebraska challenging the constitutionality of a state statute allowing pipeline companies similar authority.) Julie Trigg Crawford of Lamar County, Texas is the plaintiff in one such suit—the same Julie Trigg Crawford arrested at a White House demonstration last fall with organizer Bill McKibben and hundreds of others who, many in the name of the environment, sought to convince President Obama to deny TransCanada’s requested State Department approvals.

Among other contentions—including an allegation that by trenching or drilling on the condemned portion of her farm, TransCanada may interfere with federally protected Caddo Indian artifacts—Crawford is challenging TransCanada’s “common carrier” status. Unlike companies with pipelines that are available to carry petroleum for any producer in service to the public, private pipeline companies do not have the ability to condemn property in Texas. Yet, she alleges, pipeline companies need only check the box marked “common carrier” on this form to gain eminent domain authority, and only thereafter can condemnees challenge that authority. Crawford questions whether there will be any points of entry for any Texas petroleum products along the entire length of the Texas portion of TransCanada’s line. A hearing is set for July 9.

In a recent story on Crawford’s plight, former Republican gubernatorial candidate Debra Medina, the current chairwoman of “We Texans”—a group describing itself as a proponent of “limited constitutional government” and “freedom minded-principles”—was recently quoted as lamenting that “there is no one with regulatory power over the pipeline companies’ use of eminent domain.” Meanwhile, in a blog post depicting the scene at a “raucous” rally to support Crawford’s effort, a Natural Resources Defense Council staffer described the participants as “an unusual mix of tea party supporters, independents, Democrats, Republicans and even Occupy Dallas protesters.” I look forward to reading forthcoming scholarship on TransCanada’s condemnatory authority and its propensity to unite these types of rather strange bedfellows.

-Tim Mulvaney

White-Nose Syndrome in Endangered Tennessee Bats

As reported in The Washington Post and Huffington Post, the White-nose syndrome, a devastating disease facing North-American bats, has spread to endangered Tennessee bats.  The disease, which can be detected by a fungus on their nose, causes bats to fly outside in winter months when no insects are available.  This both poses a survival issue for the bats, and impacts human beings who rely on these bats to eliminate pests.  The disease continues its relentless spread despite efforts by the U.S. Fish and Wildlife Service and environmental groups, with some pushing for more cave closures to try to protect uninfected bats.

Hari Osofsky

China Environmental Experiences #4: Wifi Without Potable Water

This is the fourth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, and April’s account of air quality issues in China.) 

This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power.  China is the world’s fastest-growing major economy—the second largest economy of all nations, the largest exporter, and the second-largest importer in the world.  It is a nation with 500 million Internet users, 100 million cars, and the world’s largest standing army.  It is the third nation on earth to independently launch a successful manned space mission, with plans to send astronauts to the moon in the coming years.  At least in urban areas, China is a thoroughly modern, explosively developing place—with department stores selling Prada, goofy reality TV, and wifi at the local tea house... but you still can’t drink the water.

Visitors to China are carefully warned that the water is not potable and must be boiled thoroughly before consumption.  Every hotel room has a small water boiler for this purpose, and the more expensive ones provide a nightly bottle of safe drinking water by the bedside.  Water quality problems are traditionally associated with the continuing use of “night soil” (human and animal waste) to fertilize crops—an effective and inexpensive alternative with an inexhaustible supply.  Yet the problem continues even as farmers embrace more modern chemical fertilizers (perhaps too heartily, at the alarming expense of soil health), and as other contaminants enter the water supply.  While visiting the old city of Lijiang in Yunnan Province, for example, I rose for an early morning walk to find cooks cleaning the carcasses of recently killed animals, intestines and all, directly into the Venice-like canals from which others draw their drinking water.

Shortly before our arrival, we were warned by a vaccination nurse familiar with the most dangerous waterborne diseases to only sponge-bathe our 3-year-old, rather than risk his inadvertent exposure to waterborne parasites through his open eyes or mouth in a shower.  Once here, we quickly decided that this level of precaution was unnecessary, at least in urban areas where the municipal water supply receives some level of filtration or disinfection before reaching the tap (especially true in Beijing).  Still, we have learned well the rules of life here in China: drink only boiled or bottled water, no ice that can’t be sourced to boiled or bottled water, no fruits or vegetables that haven’t been cooked or peeled, and brush teeth with tap water at your own risk.  (Some friends do; others, including me, don’t.)  You should also ensure that bottled water is truly factory-sealed, as scandals have occasionally revealed empty bottles refilled with tap water being resold as new.

Without a doubt, adapting to life without potable water was the biggest cultural adjustments for us when we arrived last summer.  The first consequence was minor physical dehydration: without easily accessible clean water to drink, we drank less, and soon found ourselves more easily exhausted, ornery, and sick.  (Indeed, nothing confirms the critical nature of this life-sustaining resource more effectively than losing the taken-for-granted tap.)  Every journey away from our apartment involves water planning, as we take careful stock of how many are traveling, what will be needed, and how best to transport it.  I seem to drink more than my Chinese friends, but I still seem to be always thirsty. 

And there were other puzzling features of our new world.  For example, we struggled to understand at exactly what point our dishes were clean enough to eat off after washing them in tap water.  Were the still damp chopsticks safe to use, or the recently-washed cup still bearing that fine sheen?  And when dealing with my son’s inevitable scraped knees and elbows, was it better to wash with soap and water to disinfect, or was the water itself a source of potential harm?  (For the record, we have decided that dishes must be completely dry to be safe, and that cuts should be washed with soap and water until the dirt is out, but subsequently sterilized with disinfectant whenever possible.)

Chinese culture adapted long ago to the perils of non-potable water.  Chinese people boil all their water before drinking it, but it doesn’t seem like a burden, because they prefer to drink their water hot.  They range from amused to amazed when foreigners request cold water, which to them is as distasteful as drinking plain hot water is those foreigners.  When I invite my students to ask questions of cultural exchange—anything they want to know about American culture, politics, or lifestyle—the most frequent question is always “Why do Americans like to drink cold water? (Yuck!)”  Perhaps as a result, there is no groundswell of popular sentiment to “do something” about the water situation.  From the perspective of most Chinese, there is no problem with the water.  Everything is as it should be.

Yet China is suffering from increasingly serious water pollution problems that can’t just be boiled away.  Chemical pollutants entering the water supply from industry and agriculture are getting worse, involving toxins oblivious to disinfectants.  The World Health Organization has identified 2221 different pollutants in waters worldwide, and 765 of them in drinking water—but current drinking water standards test for only 35 indicators, and new criteria that will go into effect on July 1st will regulate only 106 pollutants.  (Source: Dr. Yu Ming, water pollution researcher at Ocean University of China.)  Chinese lawmakers and the Ministry of the Environment are struggling to cope with these problems through the PRC Law to Prevent and Control Water Pollution, but the even greater hurdle for environmental law is that of implementation. 

Even where China’s environmental laws are comprehensive, their goals are imperiled by under-enforcement.  Illegal discharging is reportedly very common, because there simply aren’t enough agency personnel to monitor them.  And even when violations are discovered, they may or may not be prosecuted by the relevant government agency—depending, perhaps, on the economic importance of the violators, or their political influence.  When the government fails to act, it can be hard for citizens and NGOs to take up the slack, because most Chinese courts don’t recognize standing for public-interest citizen suits.  And even if traditional standing were established by a directly injured party, the court may or may not decide to hear the case (for my money, one of the most surprising features of the Chinese legal system).  For these reasons and others, enforcement is usually seen as the major weakness in China’s environmental law regime.  Perhaps China’s new experimentation with a handful of specialty environmental courts will help redress these important problems.

In the meanwhile, water quality problems intersect with and exacerbate other environmental problems.  For example, one unfortunate consequence of unreliable tap water is the resulting prevalence of disposables: single-use bottled water, disposable plates and bowls, even the single-use toothbrushes that hotels at every level routinely provide.  I spent the last year spearheading a university sustainability initiative that sought personal pledges to avoid bottled water and other disposables as much as possible, so it was particularly jarring for me to adjust to this new norm—where we are happy to eat at a restaurant that provides disposable bowls, plates, and chopsticks, because we know they won’t make us sick that evening.  (And I was happy to note that, at least at our favorite local restaurant, the plasticware is marked as biodegradable.)  By contrast, at restaurants that provide the reusables I normally seek out at home, we nervously try to sterilize them with hot tea before using them, because they have likely been rinsed in the too-thoroughly recycled dirty dishwater that compounds the problems already coming out of the tap.

So, after religiously toting my reusable aluminum bottle to my every American class last year, I now carry plastic bottles of water everywhere.  And though I reuse the small bottles as long as possible rather than discarding them after a single use, they are usually filled with water that I get at home from the water-cooler bottle that many Chinese families use.  On any given day, you can spot a handful of strong men riding motor-scooters with an improbably number of these strapped to the back, exchanging filled ones for empties at private homes and businesses.  I’m happy to report that at least these large bottles are faithfully recycled.  But I’m unhappy to say that smaller plastic bottles litter the streets, parks, mountains, landfills, beaches, and accordingly, rivers and oceans.

Neither is the important relationship between water quality and water quantity lost on China, which has one of the lowest per capita rates of fresh water in the world.  Northern China is arid and especially lacking sufficient water, marked by some of the world’s great deserts, like the Gobi and the Taklimakan.  But it rains plentifully in the south and along much of the coasts.  As a result, China has erected the most massive water-delivery infrastructure in world history to shift enormous quantities from south to north, a project already underway for fifty years and scheduled for completion in another forty.  Linking China’s four main rivers together in a network of diversions, it will eventually move almost 50 billion cubic meters of water annually.  Although the project has already caused its fair share of negative environmental consequences and human displacement, most of the Chinese I have spoken to—even those from regions in which water is taken—are comfortable with the need for extreme inter-basin transfers to support northern population centers like Beijing.  And they are proud of the ingenuity and engineering that underwites this aspect of "man-made China."

Like nearly everything else in China, its history of mind-boggling human interventions with water began thousands of years ago.  I had the opportunity to explore a classic example last week while visiting the Turpan Depression near Urumqi in Xinjiang.  Turpan is the lowest and hottest place in China, at 150 meters below sea level and in the middle of China’s most arid province.  And yet there in the desert was a blooming oasis of vineyards, agriculture, and Uighur community.  How was it possible?  It is because 2,000 years earlier, the people who still live there dug 5,272 kilometers of underground canals with 172,367 vertical well shafts to collect and redistribute the groundwater accumulating from melting snow on the nearby mountains.  At its height, the “Turpan Karez” channeled 858 million cubic meters of water into 1,784 lines to distribute it to all parts of the region.  (You can’t even imagine what this looks like—best to see it, so try this aerial photo and this diagram).  It is a staggering feat of civilization—a celebration of creativity, environmentally sustainable terrascaping, and the human ability to thrive against all odds.

Modern-day Urumqi, the capital city of Xinjiang, relies on similarly creative water technology.  During my visit, I saw acres of recently planted, spindly young trees in the desert outskirts of the city, lined up like toothpicks piercing the mostly barren earth.  I would often ask my hosts, “How will these trees take root?  With what water?”, and I was always told, “Oh, there is enough water here in Urumqi.”  I knew that the trees had been planted for environmentally sound reasons—to help stabilize the soil, moderate ground temperature, and trap airborne dust—but I still couldn’t understand how they would survive in such arid ground, only occasionally studded with dwarflike sagebrush scrub.  In my broken Chinese, I would persist, “but if there were really enough water to grow trees, wouldn’t there already be trees here?”  And they would quietly insist, “no, no—there will be enough water,” though I could never understand from them why. 

Then on my last day, I visited a popular public park in the middle of the city, where the temperature was ten degrees cooler thanks to the canopy of the many mature trees that ringed its central hill and the banks of the creek flowing around it.  I followed my idle curiosity to the crown of the hill, where I was astonished to find a complex terrascaping system for just this park.  There was a small, swimming-pool like reservoir at the top, supplied by a large pipe snaking up the hill (it wasn’t clear to me from where), and a network of canals extending radially outward down the hill in all directions.  Indeed, the park’s oasis was created in the same manner as the Turpan Karez: decades earlier, the now lush trees had been planted in rings around the hill, and the reservoir fed them a steady supply of water through the canals at their base.  I was awed by the success of the project, and the clear joy it gave the city residents who collected there en masse to enjoy its peace and beauty.  And I suddenly understood what mechanisms were likely helping those new trees take root in the desert surrounding the city.

With such scarcity at hand, China is trying harder and harder to avoid squandering its precious water resources with regulatory efforts targeting both quantity and quality.  Wherever there are flush-toilets, they are almost always low-flush toilets, with separate levers for the two types of waste they will encounter (one of which needs a stronger flush than the other).  Solar-powered water heaters effectively reduce consumption by limiting hot water to what can be stored on the roof at any given time (although the more expensive ones have a gas or electric backup).  Greater efforts are being made to reduce use and recycle water wherever possible.  Hopefully, China will find a way to enact and enforce more effective water pollution laws to avoid further industrial and agricultural degradation of its water resources. 

But for what it’s worth, I’m told there are no great plans on the horizon to achieve potability from the tap, because potability is just not a cultural priority in China.  So the mantra will continue: boiled or bottled, cooked or peeled, rinse at your own risk…

 



--Erin Ryan

India's Petrol Price Hike: How Can Law Respond to Energy Intensive Development?

    Deregulation of oil is considered one strategy in the quiver of climate and energy diversification efforts. When the Government of India (GOI) deregulated most petroleum commodities in June 2010, it seemed to be headed in the right direction in strengthening its energy security and emissions reduction goals (even though the GOI presented the move as a strategy to stem losses for oil companies). Nearly two years since the deregulation, India is witnessing one of the sharpest increases in fuel prices--a whopping 11%. The result has been long lines for fuel, fuel unavailability in some places , and the rumblings of discontent in the coalition government. For people on the streets, it is simply a question of affordability.

    Interestingly, though, the fuel price has not been driven by the deregulation. It is reportedly driven by a significant fall in the value of the Indian rupee against the U.S. dollar. The Minister for Finance, Pranab Mukherjee, has reportedly announced that the government cannot interfere with a deregulated commodity. Needless to say,  opposition parties have announced a strike on May 31. The problem may get resolved temporarily; the government may infuse some relief. It may not.

    The experience, however, can provide valuable insights into the challenges of adopting meaningful energy law and policy. If the government is able to sustain its deregulation policy, then the fuel prices will not go down. In such a scenario, energy diversification may receive a boost. In the best case scenario, we are looking at increased solar, wind, and other renewable energy sources. Let us not forget, however, that the government continues to subsidize petroleum products for domestic use. Hence, renewable energy may not receive a tremendous impetus, unless these sources are used as subsititues to fuel in question (petrol or gas for vehicles). If they are to receive a boost, the GOI needs to promote electrical vehicles. We are looking at vehicles that have a price tag of about US $20,000 here in the United States. For most Indians that would be unaffordable. Perhaps electric two wheelers will cost less. Even if electric vehicles were affordable, the question is whether they can all be fed by renewable energy power or whether they will require that nuclear power plant, after all.

    Alternatively, people may simply stop relying on private vehicles and instead turn to public transportation. If the GOI can raise to the challenge of creating a viable public transportation system, this short term price problem may yield dividends in the long run. At the same time, this would mean a much smaller market for automobile companies. If the huge discounts offered by car companies is any indication, it is unlikely that they will leave the field for public transportation without a fight. After all, we are still talking about a major economic player.

    The other scenario is that the government will intervene and stabilize or even reduce petrol prices. In such a case, the impetus for changing behavior is compromised. It will send a signal that only small incremental changes to petroleum price is possible, especially absent any global increases in oil prices. Then, goals for reducing emissions and for energy diversification have to be scaled back.

    What can these lessons tell us? Despite rich legal dialogue on the matter, the question of energy comes down to question of changing behavior. People cannot be simply "nudged" to adapt to changing realities beyond a point. What future then do efforts to reduce emissions and diversify energy stand? Even if people do wean away from petroleum, can we all sustain on renewable energy alone or will we simply have to accept the a "nuclear" reality. What India's fuel price crisis can demonstrate is that carbon intensity alone is not an issue. The energy intensive model adopted by governments calls for serious introspection. Particularly, what will be true cost of energy and who will pay it. I am going to shut down my computer and disconnect the power cord, while I go back to ponder how the age old institution of law can respond to ever-increasing energy reliance. As an aside, Apple may have overtaken ExxonMobil as the most valuable company. But, it ain't worth its weight in Apps if it cannot be charged.

--Deepa Badri-- 

What "The Matrix" Tells us About Resiliency

About a year ago I posted about one of my favorite cinematic statements about natural resources, from the movie "The Matrix" (see Agent Smith on Humans as a Virus). Well, while teaching recently (via my preferred form of metaphorical pedagogy) I was struck by another portion of the trilogy, the end of the "The Matrix: Revolutions." In the film Agent Smith has replicated himself exponentially within the matrix (sound familiar?), threatening to completely overrun not only the matrix (a software system) but also to infiltrate the systems of actual machines back in the real world - potentially leading to their ultimate destruction. Neo perceives this inevitability, and makes a compelling offer to the real world machines: that he will combat Agent Smith in the matrix if they will in turn halt the impending extermination of humans on earth. While Neo, whose physical body is jacked in to the head machine in the real world, battles a seemingly infinite number of Agent Smiths within the matrix, the futility of his efforts becomes apparent. Then, however, the battle takes an intriguing turn, as Neo purposefully allows Agent Smith to turn him, via replication, into what seems like yet another Agent Smith. What has in fact occurred, however, is that Neo and Agent Smith have become integrated within the matrix, allowing the head machine back in the real world to electrocute real-world-Neo's physical body, thus destroying Agent Smith within the matrix.

My class had been discussing the interconnectedness of ecosystems - how a tree cut along a stream bank in Alabama can have an effect on global carbon sequestration capabilities (or rather the aggregated cutting of such trees); how genetic diversity has decreased with regard to crops like, for example, bananas (one species of banana - cavendish - makes up almost the entire worldwide trade in bananas - what happens if an Agent Smith fungus comes along that likes cavendish bananas?); and how our food systems are so integrated with national and global supply chains (if another Katrina hits New Orleans, Walmart and other supermarkets have food for about, what, 2-3 days? But a resilient community has a system of gardens and food producing systems that can alleviate delays in feeding a population). In each case, the interconnectedness of the system or resource puts the entire system at risk if the right Agent Smith comes along to threaten it. Rob Hopkins discusses this below, detailing our need to transition to more resilient systems - ones that are not completely at risk due to a single global crisis, plague, or disaster. While humans could certainly use the dose of humility that Agent Smith provides regarding their basic nature (that of behaving like a virus), his model of governance of a resource (unchecked replication within the resource system in an attempt to control all aspects of the system) leaves a lot to be desired. Indeed, in "Revolutions" Agent Smith proved to be no different than the humans he critically psychoanalyzed in "The Matrix," and in fact it was the humans whose sacrifice and quick thinking saved the earth - I can only hope that will be the case for us back here in the real world.

  

- Blake Hudson

In Case You Missed It: The Week of May 20-26

* Republican-led Ohio legislature passes bill establishing energy fracking rules.

* Climate scientists say warming could exceed the dangerous 3.5 C threshold. 

* Indian state legalizes the shooting of tiger poachers on sight.

* China files a complaint with the WTO against five U.S. states regarding solar subsidies.

* The battle over labeling genetically modified food in the U.S. has heated up over the last year.

* The Brazilian president has vetoed portions of a controversial bill that aims to open up more of the Amazon to deforestation.

* Nebraskan citizens fight back over Keystone Pipeline eminent domain.

* Does algae-derived biofuel have promise?

Perpectives on Risk

Today's post is a short one, as I am in transit to my new home at Wake Forest.  But this recent post by David Vogel on RegBlog offers interesting food for thought.   His new book, the Politics of Precaution, considered why precautionary approaches to regulation have shifted:  while the US used to take this approach, today the EU is the leader in precautionary regulation. I wonder whether he addresses the argument that precaution depends on one's perspective.  That is, addressing one type of risk often moves other types of risks to the forefront.  One thing is for certain:  I'm putting the book on my summer reading list. 

- Emily Meazell

U.N. Academic Impact Initiative

Last week I had the pleasure of speaking at the United Nations as a participant in the UN Academic Impact Initiative event entitled, “Sustainability in Developing Nations: Opportunities for Public/Private Partnerships.”  It was quite an honor to be involved in such an engaging project.  The event illustrated the goals of Academic Impact “to harness that great power to build a better world; a world where human ingenuity will make our homes, communities and consumption patterns socially and environmentally sustainable; a world where research receives the funding and support it needs to defeat disease, deprivation and despair; a world where the ‘unlearning’ of intolerance will bridge barriers that still divide nations and peoples.” 

This fantastic event was held at the Daj Hammarskoldj Library Auditorium at the United Nations in New York City and can be viewed here. Professor John Dernbach from Widener Law discussed the accomplishments and challenges for sustainability from his forthcoming book, “Acting as If Tomorrow Matters.”  Elizabeth Thompson, Executive Coordinator for the Rio + 20 Conference discussed Post-Rio sustainability frameworks. Professor John Nolon from Pace Law School delivered a presentation on gaps in climate change law and sustainable development law. I discussed water infrastructure planning and ecosystem services.  Professor James Gathii from Albany Law School presented on the dangers of export-driven trade policies in economies dependent on agricultural exports.  Professor Alexandra Harrington from Albany Law School discussed constitutional frameworks for sustainable decision making.  A panel then discussed the role and potential of public-private partnerships in achieving sustainable development.  Presenters on this panel included: Scott Fein of Whiteman Osterman and Hanna; the Honorable Abulkalam Abdul Momen, Ambassador from Bangladesh to the United Nations; and Kenneth Bond of Squire Sanders (US), LLP. 

Other prominent participants included: Ramu Damodaran, United Nations Office of Academic Impact; Connie Mayer, Interim President and Dean at Albany Law School; and Patricia Salkin, Associate Dean and Director of the Government Law Center at Albany Law School.

- Keith Hirokawa

Desperate Alewives and Cod without Rivers

In the often-sad history of fisheries management, few tragedies are more prominent than the decline of the North Atlantic cod.  Cod once were phenomenally abundant—so much so that many believed their populations were inexhaustible—but collapsing populations in both Canadian and American waters proved that conventional wisdom wrong.  For the fishing communities of New England and the maritime provinces, the consequences were devastating.  The aftershocks continue to the present day.  Rebuilding cod and other groundfish populations remains a struggle, and battles over fishing restrictions still rage.

Recently, a team of researchers at Bowdoin and Bates Colleges and the University of Southern Maine  began exploring a new angle on fisheries restoration.  Traditional fisheries regulation in New England, as in most U.S. waters, has focused primarily on regulating the number of fish caught.  Habitat protection is less frequently the focus, particularly if the habitat is somewhere other than the fishing grounds at issue.  But this research team’s working hypothesis is that a key step toward bringing back New England’s marine fisheries may be restoration of the region’s freshwater rivers.

At first blush, that statement may seem odd, for cod and other groundfish live their entire life cycles in the ocean.  Some of their prey, however, are another story.  New England’s lake and river systems once poured literally millions of diadromous fish into nearshore waters, and those fish—salmon,eels, shad, and, most abundantly, river herring—formed part of the base of the marine food chain.  But beginning in the nineteenth century, a combination of logging drives, pollutant discharges, and dams decimated those populations, transforming not just freshwater ecology but also the adjacent oceans.  That loss of food may have been an important contributor to the groundfisheries' near-demise.

The logging drives have ended, and, thanks to the Clean Water Act, water quality, though still problematic in places, is vastly improved. Hundreds of dams remain, and they create significant impediments to the recovery of diadromous fish populations, but that, too, is starting to change.  In the 1990s, the Federal Energy Regulatory Commission ordered the removal of the Edwards Dam on the Kennebec River (pictured at left; photos from americanrivers.org).  Several other dam removals have followed, with the Penobscot River Restoration Project—perhaps the most ambitious dam removal project in the country—beginning to remove structures this year.  At a minimum, these projects create great opportunities for studying the ecology, economics, and politics of dam removal, and the Bowdoin-Bates-USM research team is already working to take advantages of those opportunities.  Perhaps, also, those dam removals will be a step toward the restoration of an iconic fishery.

For more on the rivers, fish, and research, check out this (Emmy-nominated) documentary.

Watch Desperate Alewives on PBS. See more from Sustainable Maine.

 - Dave Owen

 

Environmental Legal Education in Spain

I find it interesting to consider differences among countries in the extent to which environmental law has developed into a distinct and significant field of legal study.  In the US, the field is pretty strong.  I think that most law schools offer environmental law courses and have at least one permanent faculty member who self-identifies with the field, and many have centers, journals and clinics dedicated to environmental law. In Latin America, where I have spent considerable time, environmental law was just beginning to come into its own as a field of study in the early 2000s.  Several Latin American countries – particularly Brazil and Costa Rica, which I know best – now have quite a few strong environmental law programs. 

With the rapid development of environmental law in Europe in the last 25 years, one might think that most law schools in Europe would have environmental law programs.  But I haven’t found this in Spain. I was privileged to have the chance to visit the only law school in Spain that has a true center dedicated to environmental law, the Tarragona Center for Environmental Law Studies (CEDAT, Centre de Estudis de Dret Ambiental de Tarragona) at the Universitat Rovira i Virgili, about an hour south of Barcelona.  I gave a talk at CEDAT’s conference on climate change regulation and electric vehicle policies, as did Steve Weissman from UC Berkeley. 

CEDAT is impressive, with about 25 affiliated law faculty (along with others from disciplines such as chemistry, economics, and geography); an internationally-recognized Masters in Environmental Law; an environmental law journal (Revista Catalana de Dret Ambiental); and an environmental law clinic.  The relatively new university (established in 1992) was motivated to develop a specialization in environmental law to create a niche for its law school and build town/gown relationships. Tarragona is a place with a relatively troubled environment, with extensive port development, a large petrochemical industrial zone, several waste facilities, and the proximity of three nuclear reactors.

Many older law schools in Spain have not yet come to view environmental law as an important legal field. The study of EU environmental law has gained a foothold in the traditional field of public international law, but other areas of domestic and international environmental, climate, and energy law seem to get little attention. I think (and hope!) that this could be a big growth area in Spanish legal education in the next decade, and CEDAT provides a great model.

- Lesley McAllister

Test Questions I Wish I’d Asked

The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.

This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). Thanks to the bloggers at CPRBlog, who helped me come up with some of the ideas.

Now find a quiet spot, sharpen that No. 2 pencil, and test your knowledge.

1. Last year, when the EPA began limiting emissions of CO₂ from coal-burning power plants and other sources, the energy industry blew a fuse.  Affected companies publicly argued that greenhouse gas regulation had gone too far. But last February during oral argument before the U.S. Court of Appeals, lawyers for some of those same companies argued that the agency’s rule was invalid because it did not go far enough. According to them, what was wrong with the rule?

 (A) The rule did not limit methane emissions from municipal landfills, methane being a more powerful greenhouse gas than CO₂.

(B) The rule did not limit CO₂ emissions from smaller facilities like hospitals, schools, and churches.

(C) The rule did not include adequate criminal penalties for “knowing violations.”

(D) The rule did not directly address facilities that consume large amounts of electricity, like the proposed car elevator for Mitt Romney’s new beach-house or Al Gore’s Belle Meade mansion in Nashville.

2. As of this month, a preliminary EPA document containing a statutorily mandated list has been trapped in a routine process of White House regulatory review for two years. Many environmentalists want the Obama administration to act on this list and are incensed by the delay.  What’s on the list?

(A) The names of chemical agents used in hydraulic fracturing, which some experts believe could contaminate nearby aquifers.

(B) The names of polluted communities that the EPA believes are in need of “environmental justice support.”

(C) The names of Republican Senators who have publicly said they believe in human-induced climate change. (It’s a short list.)

(D) The names of certain “chemicals of concern,” like the BPA used in baby bottles and dental fillings, that the EPA believes might deserve future regulatory attention.

 3. A 2011 report by the U.S. Nuclear Regulatory Commission that this year became the subject of Senate hearings, found that the Fukushima Daiichi nuclear disaster in Japan was partially attributable to a flawed planning process. What was the flaw?

(A) The hypothetical “worst case” tsunami that planners had in mind was based on overly optimistic assumptions and was not based on the full historic record.

(B) The planning process discouraged planners from giving weight to variables that were not contained within the worst-case model they were considering.

(C) The planning process was difficult to apply consistently across facility locations because of differences in geography and other site-based characteristics.

(D) All of the above.

 4. This spring on the campaign trail, Mitt Romney has offered the misfortunes of the Sackett family as an example of how an “Obama government interferes with personal freedom.” According to Romney, Mike and Chantell Sackett bought some Idaho property with plans to build a home, only to be blocked by an EPA official who insisted the property contained protected wetlands even though the designation did not appear in the wetlands registry. The Sacketts were given no chance to appeal and were forced to comply or “risk millions in fines.” The story sounds compelling, except for one unmentioned detail:

(A) Ten months out of the year, the Sacketts’ land is two-feet underwater.

(B) EPA officials had offered Mike and Chantell a “beer summit” at the White House—featuring Laughing Dog ale—as compensation.

(C) The Sacketts’ run-in with the EPA occurred during the Bush administration.

(D) All of the above.

5. Last month the U.S. Department of Justice announced the first criminal charges related to the BP Blowout. Kurt Mix, a BP engineer involved in designing the failed “top kill” remedy, was indicted for obstructing justice by allegedly destroying hundreds of text messages that described high volumes of oil escaping from the ruptured well. That’s bad enough. But as an eagle-eyed reporter at the New York Times observed, at the time of the arrest, Mix was guilty of a nearly equally grave sartorial infraction? What was it?

(A) He sported a pair of “Van’s two-toned skate shoes with white athletic socks.”

(B) He wore “a plaid, clip-on tie.”

(C) He wore “a pair of khakis without a belt.”

(D) His purple polo shirt appeared to be stained by “two splashes of Tabasco sauce.”

Have a great summer!

 --Rob Verchick

Answers: 1:B, 2:D, 3:D, 4:C, 5:C 

Emerging Issues in the Arctic, Part III: Competing Visions of Deference

Last week, the Ninth Circuit Court of Appeals heard oral argument in Native Village of Point Hope v. Salazar. The lawsuit, brought by an Inupiat village and a “who’s who” of environmental groups, challenges the Bureau of Ocean Energy Management’s approval of Shell Oil’s plans to drill exploratory wells in the Beaufort and Chukchi Seas this summer. In particular, the lawsuit claims that BOEM acted arbitrarily and capriciously when it accepted Shell’s oil spill response plan and determined, as required under the Outer Continental Shelf Lands Act, that the exploration plan would probably not cause any significant harm. 

The issues in the case get pretty technical pretty quick, but basically amount to these: 1) What kind and degree of worst case discharge analyses are required of BOEM and industry during the exploratory drilling phase in a post-Macondo world? 2) Will the well capping that worked in the Gulf of Mexico work in Arctic conditions? Shell used to say no. Now, it says yes. Should BOEM take the company’s word for it? If so, how much explanation does BOEM need to give?

I have been combing through the dockets from the various lawsuits surrounding Shell’s present and past proposals to drill in the Beaufort and Chukchi Seas in search of the competing visions of the Arctic at stake. I have assumed that this battle between Big Green and Big Oil over the future of the Arctic would involve both narrative nuance and high stakes rhetoric, in addition to the requisite reams of technical detail and bureaucratic process-speak. After all, the Sierra Club and World Wildlife Fund have mounted a campaign called “Save the Polar Bear Seas.” Earthjustice’s “Visions of the Arctic” campaign has an action alert asking supporters to write President Obama to “Protect the Fragile Arctic Ocean.”  NRDC enlisted Robert Redford for a video titled “Keep Shell Out of the Arctic.” The Center for Biological Diversity has issued a fact sheet arguing that the “national treasure” of “the Arctic’s remote and undeveloped seas” should be “off limits to oil drilling.” Greenpeace’s protest efforts have already included Lucy Lawless getting arrested for boarding an oil drilling ship in New Zealand and the organization’s being sued by Shell to keep protest boats away from drilling sites. So it’s not like emotions are being held in check. 

Of course, litigation rarely sounds as extreme (or as lively) as political campaigns or fundraising appeals or Greenpeace protests. So I was not surprised when Holly Harris, an attorney at Earthjustice, announced to the Ninth Circuit panel that although the issues in the case “strike at the heart of an oil company’s ability to stop and control an oil spill on the outer continental shelf, the court’s resolution of these issues will be founded…in nothing more than the hallmark principles of administrative law.” This, after all, is precisely what we, as law folk, want most to believe. Accordingly, although the Native Village of Point Hope case is, from the perspective of the plaintiffs’ members, about Arctic sea ice crashing into heavy equipment in violent winds and choppy waters and the threats this possibility poses to indigenous communities of the Far North, the whales and caribou they depend on, and those amazing polar bears, the case the lawyers and judges analyzed at oral argument was about the proper degree of deference the court should grant to the expert agency.

Shell’s and BOEM’s argument is that under the Ninth Circuit opinion in Lands Council v. McNair a court’s deference to an administrative agency is at its zenith when dealing with an issue that falls within the scientific or technical expertise of the agency, and even more so when the issue is at the frontier of science and technology. Here, both argued that McNair deference should apply to BOEM’s determination that Shell’s plan to use well capping to contain a blowout is an adequate part of the overall oil spill response plan. However, the case is not really about BOEM’s expertise, because BOEM is not the real expert. As noted above, Shell originally believed well capping would not work in Arctic conditions, and only recently changed its mind. BOEM accepted the company’s change of heart, but apparently without any explanation as to why. According to Ms. Harris of Earthjustice, this lack of explanation is fatal. According to Shell’s lawyers, it is irrelevant: BOEM has no responsibility to reconcile the inconsistency in Shell’s position because agencies are allowed to change their minds. 

This is a gross oversimplification of the skilled argument before the Ninth Circuit, but here, it seems to me, is the basic problem with the Shell’s argument: The agency didn’t change its mind, Shell did, and BOEM accepted it without much explanation. So, if the court defers to BOEM, and BOEM defers to Shell, isn’t the court really deferring to Shell? This, obviously, is not a unique occurrence. Industry frequently possesses a greater degree of technical expertise—and the resources necessary to develop the expertise—than administrative agencies. But this expertise is not neutral; it is deeply informed by companies’ corporate interests. Do we want courts to defer to industry (rather than agencies) in frontier areas of science and technology? Do we want courts to defer to Shell (rather than BOEM) in this frontier area of the planet? Isn’t that kind of deference a violation of the hallmark principles of administrative law? 

The well capping controversy may prove to be an illusory concern, as Shell has several other options for oil spill response and containment. These other options may be challenged a little later, when the Bureau of Safety and Environmental Enforcement issues a drill permit that officially approves the oil spill response plan. So, more to come on that front. Meanwhile, there are several other lawsuits underway, challenging the environmental review underlying the lease sale in the Chukchi Sea and the air permits issued by EPA for the drilling operations. Whether the lawyers admit it in court, the battle for the Arctic is most definitely on. 

- Michael Burger

In Case You Missed It: The Week of May 13-19

The Senate’s Energy and Natural Resources Committee took up a “clean energy” bill proposed by the Committee’s Chairman, Jeff Bingaman (D-N.M.), that would require utilities to derive a defined portion of their electricity from technologies that emit fewer greenhouse emissions than coal.

Hawaii became the first state to ban plastic bags at the point of sale after Honolulu County joined the state’s other three counties in enacting a plastic bag ordinance.

Vermont became the first state to ban hydraulic fracturing for natural gas.

NOAA reported to Congress that a record six populations of fish returned to healthy levels in 2011.

The Obama administration appealed a federal district court ruling that the EPA illegally vetoed a major mountaintop removal coal mining project in West Virginia.

The New York Times reported on some of the latest battles over coastal erosion, including one in Rhode Island and another in Hawaii.

Bumping into the Environment in Your Backyard

There could be a worse fate than having an environmental law professor as a parent, but one byproduct of that relationship is this:  You might spend your first birthday at a copper mine.  That, at least, is what my daughter learned today.  I am hoping, when she is 38, she'll forgive me.  I'm just not counting on it.

We live a fifteen-minute drive from the highest yielding copper mine in the history of the world.  And I had never been there, until today.  When my sons arrived home from school, the first words out of their mouths were that they needed to go with their friends on a neighborhood field trip to the mine, and that I needed to give them a ride (I am still not convinced they didn't invite themselves on the trip, but my good friend and neighbor, Megan, insists that this point of procedure is immaterial, so I am taking her at her word).

It was on this occasion that we thus shortly found ourselves winding my Smurf-blue Prius up the roads to the Rio Tinto Kennecott Utah Bingham Canyon Mine.  If you've never been, it's a trip worth taking.  The sheer size of the mine is staggering.  My sons got very nervous when I told them that from the entry booth, we were going to have to walk up the overburden piles to get to see the mine.  To give you a better sense of the mine's immensity, here are a few interesting facts, according to Rio Tinto:

• The mine has produced more copper than any other -- about 19 million tons.


• It is 3/4 of a mile deep and 2 3/4 miles wide at the top.


• Two Sears Towers (aka Willis Buildings) could be stacked on top of each other inside the mine and not reach the top.


• Miners drill about 200 holes that are 75-100 feet deep per day; they pack each hole with 1,200 pounds of blasting agents.


• The mine uses about 80 "gigantic" haul trucks.  Each truck costs about $3.5 million.


• Stretching out all the roads that wind around the mine would create about 500 miles of roadway -- more than enough to reach Denver from Salt Lake City.


• The mine is one of the few humanmade objects visible from space.

(Photo: Sughra Raza)

Visiting the mine was a fascinating experience.  I learned a lot I never knew about the copper production process: from mining and concentrating to smelting and refining.  I realized that far more products than I imagined use copper in them.  And I finally saw, up close and personal, a landmark that gets a lot of play in the local environmental community.

To some degree, this trip was ironic for me.  I was born and raised in Utah but had never been to the mine.  I've lived a short distance from it for over a year and still hadn't made the trek.  My grandfather used to work at the mine, and I never went with him.  Perhaps most of all, I spent the entire morning editing an article and thus thinking heavily and deeply about our interactions with the environment -- something I, and I assume, most other environmental law professors, do on a regular basis -- and yet I had never made the effort to explore this corner of my own home environment.

There is utility in making such trips.  As educators, I am convinced we have a duty to teach at all times, and that is part of why I was so willing to drop everything and take my kids up Bingham Canyon.  Even more than that, though, environmentalists -- and I count myself as one -- sometimes can get myopic about issues.  That's particularly easy when we divorce ourselves from the land, from the industry, from the systems (natural and otherwise) that surround us.  It's easy indeed when we spend most of the times sitting in our offices, reading fascinating texts, and writing on flat-screen computers.  So, as the seasons change and summer arrives, I'm committing myself to doing it more often: getting out and being in, not just writing about, the environment that sustains us all and that we need to, we must, care so deeply about.

It's good to bump into the environment more often, especially in our own backyards. 

I'm already planning on visiting the Bingham Canyon Mine again.  I might take my daughter too, even if it's not her birthday.

-Lincoln Davies

Call for Papers: AALS Sections on Property and Natural Resources/Energy Law to Host Joint Program

On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA.  This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come.  It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.”  Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.

The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.”  Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges.  The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law).  The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.

Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at [email protected] by June 15, 2012.  Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers.  Submitting authors will be notified of the results of the selection process by July 1, 2012.  To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012.  The selected authors will be responsible for paying their annual meeting registration fee and travel expenses.  Questions should be directed to Professor Saxer at the above-noted email address.

Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.

-Tim Mulvaney

Survey for Environmental Law Professors on Their Mentoring Experiences

At the AALS midyear meeting, as part of the Workshop on Torts, Environment, and Disaster, Daniel A. Farber, Bruce R. Huber, John Copeland Nagle, Jessica Owley, Melissa Powers, Kalyani Robbins, and I will be co-presenting and co-moderating a session on "Generations of Environmental Law." This session evolved out of a discussion on the environmental law professors listserve about relationships among junior and senior scholars, with a particular focus on opportunities for mentoring.  To help focus that discussion, we have prepared a brief survey for environmental law professors on their mentoring experiences.  We've kept it very short (only 9 questions, which you can choose to answer by ticking off boxes in a minute or two, with room for your comments if you have time to provide more detail). We will share the results at the conference and with the environmental law community via the listserv and this and other blogs.

Thanks in advance for your participation in our community’s efforts to improve connections among colleagues.  We greatly appreciate it.  If you have any trouble clicking on the above survey link, you can also cut and paste http://www.surveymonkey.com/s/BXZBY8D into your internet browser.

Hari Osofsky

The Carbon Leakage Problem: Why Ethical and Long-term Risk Consideration is Crucial

All has been quiet on the federal climate legislation front for a while now. As I begin to review some trade implications of climate change, I am encountering articles that discuss the "carbon leakage" problem and their treatment under the proposed climate laws. If American firms are subject to climate regulation, while other countries do not have similar law, the former cannot compete with the latter in the market. American competitiveness will therefore be undermined. Almost all climate Bills acknowledge that to combat competition loss, several energy and emissions-intense manufacturing units may move abroad. Senators recognize that neutralizing the negative impact on competitiveness is crucial for gaining support for their proposed laws. So, these Bills incorporate cost diffusion measures, including trade measures such as imposition of higher tarriffs on goods manufactured in an energy-intensive manner. Of course, this raises a host of concerns, not least among them, administrative burdens, potentially regulating countries such as China that are excluded under the Kyoto Protocol, and compatability with international trade law, particularly WTO law.

So, how do we resovle this legal tension? Some law review articles make significant suggestions for achieving WTO compatability, but the magic bullet remains evasive. What we may need to do at this point is perhaps turn to companies that could potentially move and ask them to reach down to their ethical side, as well as think through the issue from a long-term perspective. The ethical aspect requires corporations to engage in problem solving. Many corporations by now acknowledge that climate change is a grave common concern. As a step further, they should consider working with the government to minimize the economic impact through a series of internal measures, as opposed to shifting production to countries without adequate emissions control. Of course, such voluntarism and self-restraint is easier to ask for than to grant. But, then it may be easier to arrive at the decision if a business considered the long-term impacts.

While no one can predict with absolute accuracy the exact time and form that climate change will take, it is fairly well-established that impacts will include disruption of infrastructure and other structures that support the economy. As several economists have pointed out, such disruption can result in high costs not only to individuals and states, but also to businesses. For those businesses that may decide to move out, their decision would not only mean that they may contribute to negative impacts to the economy. It also means that they may find themselves in locations and situations of vulnerability. Since most countries without emissions control and competitive conditions are likely to be located in located countries, and since many of these countries are vulnerable to climate change, it is likely that companies setting up shop abroad will expose themselves to higher risk. In the long run, the manisfestation of such risk could result in complete loss of ability to compete.

Further, if historical evidence is any indication, companies and their products could be rejected under certain conditions, particularly where the reach of law is limited. This may increase competitive risk of a kind that cannot be easily mitigated since it could affect branding.

Finally, to address the competition problem, even if American firms stay put, we have to first consider which firms these might be, whether they do not present such competition threats at present (even absent climate law), and whether they have the technological know-how to compete with American firms. If the latter is the case, then American firms may already be at a disadvantage and it may not be affected by a climate law.

So, while the carbon leakage problem is legally vexing, a more business-like approach could alleviate some of the concern to some extent. Of course, law-makers cannot rest on such assurances unless companies take such an ethical and long-term view of the issue. That, however, is where the dialogue of carbon leakage should take place. 

--DB--

 

Environmental Law Has Lost a Champion: In Memory of Judge James R. Browning

In this post, I take a hiatus from chronicling my adventures in China to reflect on the passing of a giant of the American legal system, a friend of the environmental movement since its early days, and a beacon for my own spirit, Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.  Judge Browning died last week at age 93, and the world is emptier in his wake. A Montana native appointed by President John F. Kennedy, he served over half a century on the Circuit (perhaps the longest serving federal appellate judge in U.S. history), including twelve years as a particularly beloved Chief Judge.

Judge Browning was small in stature and quiet in voice, and his gentle manner moved all with whom he interacted, from members of Congress to the courthouse cleaning staff. In testament to his crusade for justice and kindness through the legal system, the Courthouse where he sat in San Francisco now bears his name. What follows is taken from an essay contributed to a recent issue of the Montana Law Review celebrating his accomplishments (published a few weeks before his death), in which former clerks were asked to describe the man and his influence on their own development within the law:
 
I began clerking for Judge Browning just as he began his transition from active to senior status after forty years on the bench. I had just graduated from law school, which I had attended after a brief career as a forest ranger near Yosemite National Park. Judge Browning and I shared a love of wilderness and open spaces that somehow bridged his Montana upbringing with mine in New York. Today I am a law professor and at the moment, a Fulbright Scholar in China, studying environmental governance in a system so different from the one in which he first immersed me. To recount the story of his influence since then, there are too many points to begin.
 
I could share what I learned from him about the art (and artifice) of holding a society together by the rule of law, a lesson especially powerful now that I am living in a society that isn’t.
 
I could recount the memorable opinions that we worked on. There was the one preserving a modicum of tribal sovereignty despite centuries of the countervailing trend in Federal Indian Law, in which he deftly wielded precedent to both cut and shield, demonstrating the great common law tradition of pursuing justice within consistency. Or the one upholding sensible environmental regulations against an insensible but novel federalism challenge, resolving perplexing questions that kept me alone in chambers with federalism theory texts for unending days and nights (and which would later fuel my own academic research agenda). Or the case in which he found a remedy to assist the septuagenarian inmate at risk of losing nearly all his teeth to callous neglect by prison staff, even after I had resignedly concluded that there was none.
 
I could recall the simple delights that he took in life, like his ritual mischief of eating a single peanut before reaching the supermarket cash register across from the Pasadena courthouse. He would enjoy the peanut in the aisles but save the empty shell for the cashier, which he politely presented with an impish grin. Then he would insist on jaywalking back to court across the wide boulevard, darting through unsympathetic traffic, even into his 80s.
 
I could talk about the humble but practical choice to make his San Francisco office not in the hallowed Chief Judge’s central chamber, but in the corner meeting room that was smaller but had better sun (such that generations of clerks would, as I did, crawl out of a law library carrel and into the grandest office we would doubtlessly ever inhabit). I could talk about the treasures and secrets that I found improbably hidden within the very walls of that office, where previous clerks had left them over the years—small notes and totems that would momentarily suspend me in the gossamer margin of present between the ghosts of JRB brethren past and spirits yet to come. It is fitting that the building now bears his name, as well as the spirit of collegiality, wisdom, and mercy that he infused into the conduct of justice within it.
 
But my favorite "JRB" tale has nothing to do with the Courthouse, or a case, or even the law. It is about the wisdom he shared when he graciously agreed to officiate at my wedding the following year. We were thrilled that he was willing, as he was already the grandfather I never had as an adult, the mentor I never had in law school, and the sage we all hope for in positions of authority. My fiancé regarded him with similar awe and adoration. We could think of no one better to shepherd us into this next, most important phase in our lives.
 
Judge Browning agreed to marry us, but first we would meet with him to discuss the project. Not of the wedding itself, of course, but the project of our marriage. By that time, he and Mrs. Browning had been married well over half a century, and he clearly had as much wisdom on this issue as anything legal. We met at the Mill Valley Train Station Cafe and dove into the sanctity of the matter over blueberry muffins and hot drinks. He wanted to know why we had chosen to marry, and what we expected of the institution. He needed to know that we were ready, and that we would approach our commitment with the requisite spirit of joy and resolve. This was important to him. He could not preside at a wedding that skewed more toward the flowers and photographs than the sacred bond at its heart. At the end of our meeting, apparently satisfied with our discussion, he gave my husband a wink and the most practical advice of all: “My secret to fifty years of bliss? She is always right!”
 
There were plenty of flowers and photographs at the wedding, which took place in a Sonoma County garden over Labor Day weekend, with happy friends and relatives gathering from all corners of the country. It made no difference to Judge Browning that my husband’s two mothers had made the same level of commitment we would now undertake. It made no difference that our vows referenced a spirituality that was not his own. It made no difference to him that we had implored him to let us arrange his ride, and so he and Mrs. Browning arrived nail-bitingly late as he slowly but safely navigated to our remote garden setting. The only thing that mattered to Judge Browning was the solemnity and joy of the occasion. He presided with a grace, wisdom, and generosity that helped set transcendental foundations for the marriage he helped bring into being. Through the times of solace and difficulty since, we have always drawn on the strength and faith that he infused into our rite of passage.
 
In retrospect, Judge Browning’s contributions to our wedding were not that different from those he made to every case that he helped decide, every law clerk that he shepherded, every aspect of justice that he has helped to administer over the years. In each instance, he never lost sight of the ultimate object of his attention: the people before him. Whether interpreting the principles of constitutional federalism, the doctrine of qualified immunity, or the Sherman Antitrust Act, his considerations—though impeccably informed by jurisprudence—always centered on the individuals who would be impacted. The citizens participating in their own governance. The suffering elderly inmate, and his caretakers who will next time rise to the occasion. The consumers that antitrust laws are designed to protect. The bride and groom, immersed in alternating tides of hope and fear.

Judge Browning always saw the human beings at the center of the circle, and he looked them in the eye. He always wielded the judicial power as a tool for realizing justice by advancing human dignity. Because of his example, countless litigants, attorneys, court personnel, and clerks renewed their faith in the legal system, and in a civil society organized around it. I certainly did. This is, perhaps, his greatest gift.
 
--Erin Ryan

NASCAR and the Environment

I've written before about how (stereotypical) emblems of conservative ideals, such as the U.S. military and Field and Stream, have demonstrated that environmental protection is truly a bi-partisan issue. These demonstrations support my view that true conservatism - despite conventional wisdom to the contrary - is quite consistent with, and actually mandates, conservation. Well, add NASCAR to the growing list of examples. The May 6, 2012 print edition of the Mobile Press-Register included an article written by Doug Demmons and titled "NASCAR embraces its inner environmentalist," which highlighted the "green hue" that NASCAR has taken of late - despite the fact that only 5 years ago the organization was still using leaded fuel. Now, however, NASCAR has launched a "Green Initiative" that includes "tree-planting, solar panels, electronics recycling, and more."

The article acknowledged that NASCAR has "long been associated with a conservative political philosophy," but that the policy was successfully put into place because NASCAR emphasized three areas in particular that resonate with NASCAR fans: 1) conservation, 2) job-creation, and 3) weaning America off of Middle Eastern oil. In fact, recent polling has demonstrated that "NASCAR fans have shifted even more than the general population toward support for such programs."  

NASCAR has moved away from leaded gasoline toward ethanol/conventional fuel blends and has further established a program to "offset the carbon that racecars pump into the atmosphere by planting trees at tracks and in the communities surrounding those tracks." In a somewhat funny sounding, but still awesome sentence, NASCAR has acknowledged that "the more wrecks and blown engines there are that require restarts, the more trees will be planted." NASCAR plans to double the size of the program each year until they have covered the entire racing circuit. These efforts are steps in the right direction, since according to NASCAR's estimates it only takes one racecar traveling 500 miles to put one metric ton of carbon into the atmosphere, while one tree over a 40-year period stores that much carbon. NASCAR racecars on the Sprint circuit alone burn through over 135,000 gallons of fuel in one season.

Additionally, Goodyear Tires shreds and repurposes most all of the used racecar tires, Safety-Kleen Systems reuses 180,000 gallons of spent motor oil and lubricants each year, at least one raceway (Pocono) is powered completely by solar power, one team (Roush) recycles nearly all of its wrecked cars, and one shop (that of Kyle Busch) is attempting to obtain LEED certification for its new facility in North Carolina. An all-electric Ford Focus was even the pace car that led the gas-guzzlers to the green flag at a recent race.

In the end, NASCAR's move demonstrates the power of appealing to the correct values, and how true environmentalism is about making real to everyone along the political spectrum the way in which the environment affects their daily life. Unlike so many contentious issues of our time, which involve issues of religious conviction or moral ideals, the environmental discussion largely depends upon the accurate dissemination of information. Sure, there are those who would argue that environmentalism invokes morals or religious convictions (on both sides of the debate), but ultimately when people understand the dependence of society on a clean and healthy environment, positive steps are typically taken.

In John Rawls' "veil of ignorance" he challenges us to consider what we would want society to be like if we had no way of knowing whether we'd be born rich or poor, black or white, powerful or disenfranchised. Rasband, Salzman, and Squillace frame the question a bit differently: if you had no idea when you would be born, how would you want resources to be managed today? I imagine most NASCAR drivers and fans would want us to be burning the most renewable fuels (and the cleanest), recycling racing materials, powering facilities with renewable energy, and preserving enough natural capital around the racetrack to stand in the shade on a hot summer day. Because if they don't, then in 300 years their descendents almost certainly will wonder about this strange artifact of a sport where 100,000 people gathered to watch cars drive around in circles.

- Blake Hudson

In Case You Missed It -- Week of May 6 - 12

- It's National Bike Month

- It's also Asthma Awareness Month

- The New York Times reported that Japan has shut down the last of 50 nuclear reactors, leaving the country without nuclear power for the first time in 42 years

- TransCanada submitted a revised application for the Keystone pipeline

- President Obama issued a new Executive Order entitled Identifying and Reducing Regulatory Burdens (critical analysis here)