Environmental Law Prof Blog

Secretary Salazar's Unfortunate Prediction

Good news for the Arctic! “There’s not going to be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up.

Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition from many environmental groups. While acknowledging the many challenges presented by such an operation, the Secretary recalled his department’s new permitting standards and expressed confidence in a new oil containment device that was recently tested in Washington’s Puget Sound.

Then: “I believe there will not be an oil spill. . . . If there is, I think the response capability is there to arrest the problem very quickly and minimize damage. If I were not confident that would happen, I would not let the permits go forward.”

I won’t dwell on the fact that Shell has faced more prosecutions for safety and environmental violations than any other major oil company drilling offshore in the North Sea. Or that last year the Coast Guard warned that if a spill occurred in the Arctic, “we’d have nothing. We’re starting from ground zero today.” Or that Secretary Salazar seemed equally impressed with the “remarkable” gee-whiz technology used in the Gulf of Mexico before it blew up. (President Obama was similarly smitten, boasting eighteen days before the blowout that “oil rigs today generally don’t cause spills.”)

Instead I want to focus on risk management and cats. (Stay with me now.)

When Secretary Salazar says he doesn’t believe there will be an oil spill, and if there is it can just be cleaned up, he’s ignoring how complex disasters actually unfold. In the BP Blowout, it wasn’t one thing that went wrong; dozens of things went wrong, from poor diagnostics to bad cementing to inadequate response resources to failed “top kills.” Often, these events feed on one another—as in a chain reaction—making the sum devastation much greater than that from any individual event.

In our textbook on disaster law, my co-author Dan Farber explains the challenge of predicting failure in a complex system by asking us to visualize cats. (Jim Chen and Lisa Grow Sun are also co-authors on this book.)

Explaining the “simple” system, Farber writes: 

 When an event is caused by a large number of random factors, the resulting probability distribution is often the famous bell-shaped curve . . . with most events bunched near the average and extreme outcomes fading away quickly.  If the average cat weights ten pounds, we can expect that most cats will be within a few pounds of the average and we can safely disregard the possibility of a two-hundred pound tabby. 

A simple distribution looks like this: 

However:

Complex systems . . . are often characterized by a different kind of statistical distribution called a “power law.” If feline weight were subject to a power law, we would find that the vast majority of cats were tiny or even microscopic but that thousand-pound house cats would cross our paths now and then.  Under a power law, the possibility of freak outcomes, a one-ton [feline], weighs heavily in the analysis, often more heavily than the far more numerous “routine” outcomes, the tiny micro-cats. Indeed, a power law probability distribution makes it somewhat misleading to even talk about  “typical” outcomes. . . . Extreme events are more likely in complex systems – obviously something that’s very relevant to disaster issues.

Thus:

So what kind of cat is Secretary Salazar’s department actually prepared for? A mewing fluff ball or something much bigger?

--Rob Verchick

Links to Environmental-Related Stuff on Yesterday's Health Care Decision

While it is certain I will miss some, here are the blogs that I have seen on how yesterday's health care ruling might (or might not) impact future environmental law cases.

Ann Carlson (Legal Planet) -- Another (Mostly) Uninformed Post About the Health Care Cases and Environmental Law

Brigham Daniels (this blog) -- Fortuitous Spleens and Hapless Toads

David Driesen (CPR Blog) -- Health Care's New Commerce Clause: Implications for Environmental Law

Tim Mulvaney (this blog) -- Today's Health Care Decision: Some Potential Implications for Environmental Law

Jonathan Zasloff (Legal Planet) -- Conditional Spending and the Clean Air Act

Here are a number of media soucrces on what the opinion says about future cases (including environmental cases) more generally.

Jonathan Adler (SCOTUS Blog) -- Lose the battle, win the war?

Erwin Chemerinsky (SCOTUS Blog) -- A surprise?

Jedediah Purdy (Huffington Post) -- How to Read the Health Care Opinion

James B Stewart (NY Times, The Caucus) -- An Important New Limit on the Commerce Clause

-- Brigham Daniels

Today's Health Care Decision: Some Potential Implications for Environmental Law

As many scholars already have noted throughout the afternoon, today’s decision by the U.S. Supreme Court to uphold the basic provisions of the Patient Protection and Affordable Care Act could have important implications for environmental law moving forward. 

In an opinion authored by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court concluded that the Act’s requirement that certain individuals pay a penalty for failing to obtain health insurance could reasonably be characterized as a constitutional tax.  However, the Chief Justice joined Justices Scalia, Kennedy, Thomas, and Alito in concluding that Congress’s power to regulate interstate commerce did not authorize this minimum coverage provision.  Moreover, by a vote of 7-2, the Court struck down as violative of the Constitution’s Spending Clause a portion of the Act that would have required states to either acquiesce to an expansion of Medicaid or sacrifice existing federal Medicaid contributions.  In a statement read from the bench, Justice Ginsburg asserted that “the Affordable Health Care Act survives largely unscathed, but the court’s Commerce Clause and Spending Clause jurisprudence has been set awry.  My expectation is that the setbacks will be temporary blips, not permanent obstructions.”

On the environmental front, preliminary analysis suggests that the potential ramifications largely fall into two categories.  First, it is possible that the Court’s pronouncement on the Commerce Clause could prompt new challenges to federal laws seeking to protect and preserve natural resources and public health.  (Yet, as Ann Carlson notes on Legal Planet, environmental laws do not mandate that people enter a stream of commerce; instead, they seek to regulate the harmful effects of commerce.)  Second, the Court’s conclusion on the Medicaid expansion issue could open the door to challenges to laws pertaining to other federally financed state programs; for example, the Clean Air Act’s provisions that authorize the federal government to withhold federal highway funding in the event states fail to revise their plans to reduce air pollution to meet federally-specified air quality standards.  (However, Jonathan Zasloff, also on Legal Planet, explains several key differences between the Medicaid provision and the Clean Air Act’s provision regarding potential elimination of federal highway funds, including the fact that such highway funds are appropriated every year and thus may not amount to entitlements on which the states reasonably can rely.)

In addition to these two broad categories, there certainly could be more specific impacts to environmental law lurking in the nearly 200-page decision issued this morning.  For one, as I followed the decision’s coverage surrounding Chief Justice Roberts’ deferential understanding of the government’s ability to levy taxes, I thought of Eduardo Penalver’s thought-provoking article entitled Regulatory Taxings, 104 Colum. L. Rev. 2182 (2004). 

Penalver described the tension between (1) the U.S. Supreme Court’s relatively recent expansive, if indeterminate, reading of the Takings Clause to reach beyond outright government appropriations of property, and (2) the Court’s long history of recognizing a nearly illimitable power to tax.  (Admittedly, Penalver authored the piece prior to the Court’s deciding Lingle v. Chevron and Kelo v. New London, both of which arguably slowed the pace of this expansion of federal takings law; nonetheless, his basic premise regarding the differing constitutional treatment of takings and taxes largely remains accurate.)  Penalver suggested that any theoretical attempt to reconcile current prohibitions on takings with the constitutional treatment of taxation yields a category of “regulatory taxings,” i.e., “state actions that although viewed as takings under current doctrine, cannot be distinguished from taxes under the particular ‘reconciling theory’ examined.”

Some scholars, most notably Richard Epstein, have drawn on this tension to attack the very legitimacy of many taxes.  Penalver, however, critiqued Epstein’s approach “to redefine a settled area of law (tax law) by reference to a novel theory of a doctrine (takings law) badly in need of concrete definition.”  Alternatively, Penalver suggested that one might “run [Epstein’s] argument in the other direction” and “use the settled law of taxation as a constitutional fixed point around which to more clearly [and, necessarily, more narrowly] define the law of takings.” 

In today’s opinion, Chief Justice Roberts demonstrated principled regard for the longstanding, extensive judicial deference towards taxation.  Such deference to the government’s taxing power could forecast his views in future takings cases, many of which often involve challenges to environmental regulations.   That, though, is only the case if the Chief Justice concurs with Penalver, Epstein, and others that the inconsistency between takings and taxation jurisprudence needs resolution.

-Tim Mulvaney

Fortuitous Spleens and Hapless Toads

Today, while upholding the Affordable Care Act on other grounds, the Supreme Court found that the Commerce Clause was not broad enough to sustain the Act's individual mandate.  While there is reason to distinguish the opinion in the Affordable Care Act case with most other enactments by Congress, today's ruling--like a number of other cases from the past decade--raises some question marks about whether some applications of federal environmental law are constitutional under Congress's Commerce Clause power.

As I sat reading the opinion this morning, I kept thinking back to a famous dissent the Chief Judge penned before he was elevated to the High Court. Specifically, not too long after he became a judge on the D.C. Circuit, that court was asked to rehear a case en banc in which a three-judge panel had earlier ruled to uphold the Fish and Wildlife Service's decision to protect arroyo toads under the Endangered Species Act.  The majority of judges on the D.C. Circuit voted not to rehear the case, triggering the Robert's dissent. Displaying both humor and hostility toward the Service's application of the Endangered Species Act, Roberts wrote:

"The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several States.'"

While today's news is that Roberts voted to uphold the Affordable Care Act, his opinion also might serve as a warning shot of things to come.  If that shot hits, toads and a wide range of other things in our natural environment might sit haplessly by as the Court employs some of the logic in today's opinion to strip away the reach of federal environmental laws.

-- Brigham Daniels

D.C. Circuit Upholds EPA Greenhouse Gas Regulations

Yesterday the D.C. Circuit rejected a challenge by industry groups to the U.S. EPA's regulation of stationary sources' greenhouse gas emissions under the Clean Air Act.  The D.C. Circuit summarizes its opinion as follows:

Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.

Ann Carlson has provided an excellent overview of the opinion in its broader context and a discussion of standing issues.  The opinion is also interesting when viewed as an example of climate change litigation's role in shaping the U.S. regulatory path (an issue that has long been of interest to me and on which I'm doing some new comparative work with Jacqueline Peel of the University of Melbourne).  In the context of these regulations in particular, the courts have repeatedly served in multiple roles.  The U.S. Supreme Court, through its finding in Massachusetts v. EPA that the EPA abused its discretion in its approach to failing to regulate greenhouse gases, engaged in statutory interpretation which served as the basis for EPA's subsequent action.  The Court reinforced the appropriateness of ongoing litigation over EPA's use of its regulatory authority in this context while closing the federal public nuisance pathway in AEP v. Connecticut.  In this case, the D.C. Circuit helped to resolve such a challenge and further clarify standing issues; time will tell whether an en banc D.C. Circuit or the Supreme Court will uphold this resolution if there are further appeals.  Moreover, this decision occurs in the context of a wide range of other lawsuits regarding climate change, some focused directly on regulation and many others on building/expanding/permitting coal-fired power plants.  Especially because the Congress looks unlikely to pass comprehensive climate change litigation anytime soon, these lawsuits play a critical role in constituting and shaping the U.S. regulatory approach to this problem in general and in clarifying the Clean Air Act's role in particular.

Hari Osofsky

The EU Pfizer decision: Still provoking thought on risk regulation in the EU

This week I had an opportunity to discuss risk regulation with a group of American and French students. We reviewed Jonathan Weiner's article, Whose Precaution After All? A Comment on the Comparison and Evolution of RisK Regulatory Systems, 13 Duke J. Comp. & Int'l L. 207 (2003). I also had an opportunity read a summary of a 2002 case referred in Weiner's article, Pfizer Animal Health SA v. Council of the European Union (European Court of First Instance, 2002). The case addressed the issue of the authority of European Community institutions in regulating the marketing of antibiotics for use as an additive in "feedingstuffs." While the case is old, it remains unchallenged and provides food for thought. I was particularly struck by the following parts of the decision and their divergence from the U.S jurisprudence:

1. While EC institutions must seek the advice of scientific experts, their opinion is not binding on the public authority. It may choose to regulate a risk even when there is contrary finding (in fact, in exceptional circumstances it can circumvent the general requirement that scientific advice must be sought before deciding to regulate a risk).

2. The principle of proportionality, which is akin to a cost-benefit analysis, should guide the decision of public authorities. While this principle is generally understood to mean that an EC institution should not "exceed the limits of what is appropriate and necessary" to legitimatey pursue the objectives of a legislation, in the case of common agricultural policy, discretionary power is recognized unless a decision is "manifestly inappropriate."

3. "The protection of public health, which the regulation is intended to guarantee, must take precedence over economic considerations."

4. An economic actor (in this case Pfizer) has no "right to be heard" in legislative procedures, even when a measure may affect such an actor. (Apparently, a matter pending before courts under the Aarhuus Convention may affect this decision, but it unclear whether and to what extent).

To my knowledge, comparable standards are not applied by U.S. courts. In this post, I raise the questions that we discussed in class, albiet without any concrete conclusion: Why are the standards regarding risk regulations different? Which is a better approach? How can we learn from each jurisdiction?

--DB--

On Climate and Forests, Don't Forget the Institutions

Last week I had the pleasure of presenting at the International Symposium on Society and Natural Resources in Edmonton, Canada. First of all, it was a nice way to get a long-overdue forest fix by taking my first mountain forest hike with my son (it seems I have spent more time writing about forests of late than walking through them; but see image below). Second, however, it reminded me once again of the importance of governance institutions in facilitating political ideas and policy choices.

I prepared for the conference by expanding on research I had already performed on the allocation of governance authority over forest policy between national and subnational governments in certain federal systems. In some systems, particularly in the developed world, the institution that allocates regulatory authority (the Constitution) presents major obstacles for national-level forest policy, which may facilitate varied, disparate, and inconsistent subnational forest policies - a situation that can have major implications for climate policy, since nearly 20 percent of global carbon emissions result from forest destruction and degradation. So even if political will exists to craft national-level forest policy (which in turn impacts global forest and climate policy), the legal institution itself can be a roadblock. In other federal systems, particularly in the developing world, the constitutional institution is quite strong, providing for very dynamic forms of federalism that allow direct regulatory inputs into forest policy at national and subnational levels. Rather, the problem in much of the developing world is that nations' enforcement and rule of law institutions are inadequate to ensure implementation of forest policies at all levels.

Indeed, institutional weaknesses have impacted what was once the great hope for global forests, and which may still remain so with the right institutional and policy tweaks - Reduction in Emissions from Deforestation and Degradation (or REDD) programs. A few days ago, at Rio+20, a summary report on REDD announced that the challenges REDD programs face "are not easily overcome." REDD programs have been described as "floundering," due to uncertainties regarding the allocation of project funds, hijacking of the funding process by those holding forests "hostage" (so to speak) unless they are paid not to cut their forests, and the inability politically at the international level to reach consensus on reducing industrial carbon emissions (emissions limits which would be a driver for forest-based carbon offsets). Ultimately, while these political questions complicate the REDD solution, institutions facilitating the programs are in desperate need of attention. In the words of Professor Stephen Howes, director of the Development Policy Centre at the Australian National University's Crawford School of Public Policy, "[y]ou need to have an approach that's more focused on national government policy. You need to change national government policies and strengthen national institutions if you're going to hope to tackle these drivers of deforestation."

Relevant for my talk at ISSRM, and a future article on which I am working (suggestions welcomed!), is how the forest governance strengths in the developed world (enforcement and implementation) can be linked with the governance strengths in the developing world (dynamic constitutional federalism allowing direct regulatory inputs into forest policy at all levels of government) to allow more robust and successful forest policy in all federal systems. For one, more dialogue needs to take place between federal systems on institutional structure, rather than focusing primarily on political goals and aspirations. Countries need to establish more direct discussions about how, notwithstanding sovereignty concerns, they can learn from each other from an institutional perspective - not unlike the debates our Framers had over the form of our Constitution early on. In a time when so much is becoming globalized, countries should not maintain isolationism regarding individual national institutions. Let's not only remember the importance of institutions on the domestic level, but let's share and receive institutional knowledge as freely as we do international goods and services - in a new "global institutions market."

- Blake Hudson

In Case You Missed It: The Week of June 17-23

* As detailed by Sean Hecht over at Legal Planet, UCLA and the city of Los Angeles publish the first long-term climate forecast for a city’s neighborhoods.

* Florida's freshwater springs are increasingly threatened by development.

* U.S. carbon emissions drop despite inaction of Congress, primarily due to a shift toward natural gas.

* The American diet in one chart.

* You can identify poor neighborhoods from space - by their lack of trees:

Mingo Logan Coal Co. v. EPA, On Appeal

Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis.  For those following the case, it's now on appeal to the D.C. Circuit.  EPA's statement of the issues, filed last week, keeps things crisp: 

The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.

EPA's brief is due on July 18. 

-Emily Meazell

EPA's New Policy on Integrated Stormwater and Wastewater Management

The last time I taught water law, I took my students on an urban water quality field trip.  We toured a wastewater treatment plant and visited some impaired urban streams.  It was all interesting, or at least the students humored me and pretended it was, but the most memorable moments of the trip involved combined sewer overflows.  During the wastewater treatment plant tour, we saw the point where excess sewage flows were diverted into a pipe discharging directly into Casco Bay, not far from a public beach.  During our visit to the impaired stream, we stopped not far downstream from a still-active CSO.  To untrained eyes, nothing would have seemed amiss with the stream, at least until one student noticed a piece of toilet paper suspended from an overhanging branch, fluttering gently in the October breeze.

CSOs are kind of fascinating.  The Clean Water Act assumed its modern form four decades ago, and in the years since we’ve made great strides in controlling direct effluent discharges.  Yet in many cities—particularly older ones—combined sewer systems carry stormwater and wastewater to treatment plants, and when storms overwhelm the capacity of those plants, huge volumes of untreated sewage discharge directly to surface waterways.  These discharges are blatantly inconsistent with the Clean Water Act, and they impact some highly valued, widely used waterways—often in cities otherwise known for their liberal and green politics.  Yet they’re still around.

The primary reason, of course, is money.  Avoiding CSO discharges often means major infrastructural improvements, and cash-strapped cities don’t have the money to make those changes quickly.  So, while EPA has entered into consent decrees with many cities, and while those cities are slowly chipping away at their CSOs, much work remains to be done.  Where I live, at least, while environmental groups aren’t happy with the situation, they grudgingly understand the slow progress.  “Yeah, we could sue the city on this,” one prominent Maine environmental attorney told me (I’m paraphrasing) not long ago.  “But what are they going to do?  Shut down the schools to pay for it?”

In recent years, another complication has emerged.  The traditional way to fix a CSO problem was to separate the storm and wastewater sewer systems.  Stormwater then would discharge directly to surface water bodies, and with only wastewater going to the treatment plant, the plant’s capacity wouldn’t be overwhelmed.  But urban stormwater isn’t exactly benign.  It’s loaded with pollutants, and spikes in flow can also damage the hydrology of streams.  During smaller storm events—events that would not overwhelm the capacity of treatment systems—a combined sewer system would result in treatment of that stormwater, but with a separated system, such treatment no longer occurs.  So while separating the sewers can reduce wastewater pollution, the price is an increase in stormwater pollution.

Last week, EPA released a policy statement designed to address this dilemma.  The broad goal of the policy statement is to encourage municipalities to generate integrated plans addressing stormwater and wastewater.  A closely related goal is to encourage the use of “green infrastructure”—that is, green roofs, stormwater infiltration systems, and other mechanisms for reducing stormwater discharges--thus reducing strain on combined sewer systems without increasing direct stormwater discharges.  EPA isn’t saying that municipalities with these plans will obtain any exemptions from their consent decrees or other Clean Water Act obligations.  But EPA does suggest that if municipalities adopt these plans, EPA will take the olans into account when deciding whether to bring enforcement actions, and also when deciding what actions it will require of cities, and what compliance schedules it will negotiate or impose.

One policy statement does not fix a major and longstanding problem.  But this sure looks like a step in the right direction, and it’s not the first step EPA has taken to push green infrastructure.  Even if the change will be incremental, hopefully there will come a time, not too far in the future, when my water quality field trip is primarly about green roofs and other sustainable stormwater treatment systems (we'll still also go to the wastewater treatment plant), and our sidetrip to the now-defunct CSO just provides a little historical color.

-Dave Owen

Obamacare and Federalism's Tug of War Within

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.

Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?

To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning from that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.

As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and local government brings useful capacity to the regulatory table.

Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.

But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.

Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.

By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.

The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, would that be okay?)

Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)

This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.

A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.

Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.

The trick, of course, is that while all of these values are independently good things, they are nevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.

Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.

And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.

The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.

In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to facilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.

--Erin Ryan

(An abbreviated version of this essay first appeared on RegBlog, and then on the American Constitution Society, on June 21, 2012.)

Doing Away with Cars as Property

This week I met a Jean Claude Puerto Salavert who founded Ucar, a car rental company in France, with a new perspective: reduce car ownership by providing people with the choice of renting cars at a lower price. His view is quite simple—by eliminating the idea of car as property, one can help reduce pollution. Jean Claude’s idea stems from his experience in France, where apparently people buy cars that can transport an entire family long distances. However, since they cannot afford more than one car, they buy a big car. Because big cars are expensive, they buy second hand cars that are ten or more years older. In short, people choose cars that are meant to serve multiple uses even if they may be inefficient because they serve a limited purpose.

By working with car dealers and companies, he hopes to reduce dependency on cars. While similar models can be found in “zip car”, Jean Claude’s idea appears more ambitious since he wants to change the notion of car ownership as a fundamental concept. He has written a book on the subject, Pour le prix de ce livre, vois pourriez avoir une voiture [For the price of this book, you could have owned a car], and which owing to my poor French knowledge will have to await a translation. But, I am told that the book, published in 2006, presents his arguments for reducing car ownership. He focuses on the following themes in encouraging people to consider sharing new cars for a low price: comfort, security, better image, savings, lower energy cost and decreased pollution.

At a time when the idea of car ownership is spreading in several developing countries, notably China and India, it is interesting to discover efforts to the contrary here in France. The idea may also be palatable for car companies, because Jean Claude does not argue against car use and is in fact working with car dealers to find mechanisms to make car rentals cheaper. What he is apparently trying to figure out is a way to get government assistance in his project. Perhaps if car rental sectors could be brought within the EU Emissions Trading Scheme conditioned on proven ability to convert car ownership and reduced emissions, the European Union may be able to consider this idea as part of its strategy to reduce emissions.

While discussing the idea with friends, I also learned that for some time the government of Belgium provided three years of free public transportation for citizens who gave up their car. That seems like another interesting idea, as well. Of course, the availability of public transportation and access to daily necessities in a geographical location is critical to making this idea work on a larger scale. But, it is certainly an idea worth considering as we face the prospect of increasing car ownership.

On separate note, when I inquired whether this model can be used to rent out cheap hybrid cars or electrical vehicles, the answer was yes, but not until charging stations are made available and the grid developed. That, of course, can take quite a while. It is interesting to note, however, that business entrepreneurs can find discrete opportunities as governments grapple to reduce pollution.

 For now, it is au revoir from a place with great public transportation.

 --Deepa Badri--

Co-Regulation: What is it?

I’m in the process of editing an article about environmental co-regulation. My starting point for the article was a study of environmental law in Mexico, where the federal environmental agency has run a voluntary environmental compliance program called the National Environmental Audit Program (Programa Nacional de Auditoria Ambiental) since the early 1990s. The basic idea of the program is that a regulated facility can opt out of regular inspections (and potential penalties) by hiring a private third-party firm approved by the agency to audit its compliance and devise a compliance plan to correct any deficiencies. About 9,000 industrial facilities and other establishments, owned by many of the country’s largest companies, have joined the program over the years.

Studying this program, I arrived to the question: what kind of regulation is this? It had characteristics of both typical state-directed regulation and self-regulation. When I came across the term co-regulation, which has been used much more extensively in the European environmental law literature, I was happy to see that it fit. But the meaning of co-regulation (and for that matter, self-regulation) has not been well-specified, so the first task of the article became just that. For this purpose, I constructed the “regulatory spectrum” below. I hope that you find it interesting and useful in your own thinking about regulation.   And if you'd like to read my draft article, Co-Regulation in Mexican Environmental Law, I've posted it on SSRN.

- Lesley McAllister

Emerging Issues in the Arctic, Part V: The Contested Space of Indigenous Peoples

Last week I was in Juneau for a conference hosted by the Association for the Study of Literature and Environment and united under the theme of “Environment, Culture & Place in a Rapidly Changing North.” Papers presented have tackled a broad range of topics, from what might seem obscure to the law community (representations of gender and race in the “post-carbon” novel, a study of Edward Abbey’s taste in music) to what is most definitely on point (frontier rhetoric and environmental justice concerns in Arctic oil and gas politics, park management in Alaska and the Yukon, citizen resistance to fracking in northern Ohio, the Russian view of the far north). But as I recall the large raven statue in the Egan courtyard on the University of Alaska Southeast campus, which itself sits on Tlingit land, I cannot help but think about the recurrent motif of indigenous peoples and the contested space their stories and communities occupy in the new Arctic.

Many presenters at the conference offered studies that revealed the power of story to fuel and shape environmental conflicts. Julie Cruikshank, though, an anthropologist at the University of British Columbia who has spent years of her life documenting the life stories of Athabaskan and Tlingit women in the Yukon, raised a question of particular salience for environmental law: What do current methods of incorporating traditional environmental knowledge (TEK) into environmental decision-making signal? As described by Professor Cruikshank, indigenous peoples in northern Alaska and Canada are invited, or else made, to participate in bureaucratic processes such as public hearings and environmental reviews; through their participation they are invited, or else made, to lend their TEK to the underlying field science and managerial science that will direct decisions on where and when to mine or drill. The indigenous peoples may be unaccustomed to the process, and even if they have become accustomed to the process the form and place of speech may still be antithetical to the very TEK they are being called upon to share. In essence, Prof. Cruikshank said, indigenous peoples are forced to re-orient themselves in relation to the permitting agency; but there is no corresponding obligation on the agency to shift its orientation based on the indigenous peoples’ TEK.

Now, if TEK reveals that an endangered or threatened species mates or feeds in a certain area then the agency and the project sponsor would do well to take that fact into consideration, lest they wind up in court defending their decision to ignore it. Shell learned this the hard way in the Arctic. Yet, this measure of regard is a far cry from the far deeper engagement that Prof. Cruikshank suggested would be necessary to actually inform the decision-makers’ worldview.

It was at this point that I found the lawyer in me raising questions the humanist in me probably would have preferred to leave unasked: Is the purpose of consulting with or otherwise soliciting traditional environmental knowledge from indigenous peoples really to inform a decision-makers worldview? If the answer to that is no—and on a descriptive level it is—then should that be the purpose? Or is the purpose simply, and properly, to obtain information to plug into existing scientific and bureaucratic models of knowledge-creation and decision-making?

These questions could be asked more generally, in regards to public comment from any local community – fishermen subjected to quotas and catch-share programs, city residents subjected to new construction projects, and so on. There is a real problem of ideational and emotional incommensurability. But these problematics are particularly pronounced in the Arctic, as industry moves into areas that have been almost exclusively inhabited by people with radically different worldviews, worldviews that are traditionally communicated through stories that simply do not fit into the regulatory state. Ultimately, these stories underscore the degree of difference: Agencies can account for where local people say the whales or caribou are. But what are they supposed to do with the stories of the whale and the fox?

- Michael Burger

In Case You Missed It: The Week of June 10-16

The U.S. Court of Appeals for the District of Columbia ruled that the Nuclear Regulatory Commission must consider the environmental impacts of long-term storage of radioactive waste at power plants when it renews licenses (the decision is here).

Wildfires burned in Colorado and New Mexico.

A new Title VI Civil Rights administrative complaint was filed by the Center on Race, Poverty and the Environment against the California Air Resources Board over AB 32's Cap & Trade program.

A huge 'forest' of algae was unexpectedly discovered by NASA under the Arctic Ocean.

Sen. Mike Lee (R-UT) introduced an amendment to the Farm Bill that would eliminate federal protection for endangered and threatened species that exist entirely within the borders of a single state.

California's Salton Sea State Recreation Area is on a list of parks to be closed because of the Salton Sea's environmental woes as well as California's financial woes.

Call for Papers: Washington and Lee's "Climate Change in the Former Colonies: Challenges of Property and History"

From the CFP:

Washington and Lee University School of Law’s Law and History Center, in partnership with Virginia Sea Grant, will host a symposium on Climate Change in the Former Colonies: Challenges of Property and History. Recognizing the unique impact that the colonial legal experience continues to have on Eastern states, the symposium will focus on the application of legal historical research to contemporary problems and opportunities in the areas of policy-making, property rights, and hazard resilience in coastal communities. Panel presentations and potential topics include:

- How the colonial legal experience affects modern property rights and our responsiveness to climate change

- Historical and modern property doctrines—particularly nuisance, zoning, and eminent domain—and their relation to current climate change challenges and policies

- Changing notions of acceptable land use and natural resources

- Environmental hazard resilience policies and opportunities for their enhancement via legal strategies

We are open to suggestions of other related topics.

You can download the full CFP here:

Download Call for Papers

Renewable Energy Scorecard - What's Your Country's Grade?

In anticipation of Earth Summit 2012, the NRDC recently released a global scorecard grading G20 countries on their performance in deploying renewable energy.  The scorecard paints an interesting picture, showing where renewables are most used and where they are growing the most.  NRDC argues that as a planet, we can reach 15% renewable energy by 2020 -- something the report contends would double current predictions.

Here are a few highlights from the scorecard:

• Germany produces the most electricity from renewables, followed by the EU as a whole, then Italy, then Indonesia.


• South Korea, then China, then Brazil have had the most growth in renewables since 2002.


• The U.S. ranks 7th of G20 countries in electricity production from renewables.


• Last out of the G20 countries is Russia.


• There was $160 billion invested in new clean energy developments in 2011 in G20 countries.

 

Image credit: NRDC

-Lincoln Davies

New Jersey Supreme Court Grants Certiorari in Oceanfront Takings Case

Earlier this week, the New Jersey Supreme Court granted certiorari in an important takings case that could indirectly determine the fate of public beach replenishment projects in the Garden State moving forward.

For decades, the U.S. Army Corps of Engineers has pumped millions of cubic feet of sand onto New Jersey’s beaches in an effort to protect the state’s highly developed and highly populated beachfront.  Generally, the federal government funds approximately 75% of the cost of these multi-million dollar projects, with the state and relevant local governmental entities paying the remainder.  Under this arrangement, however, it is the local governments that bear the responsibility to acquire any necessary property interests to allow the project to move forward.  In many instances, New Jersey municipalities have acquired voluntary construction and public access easements from private beachfront landowners who overwhelmingly welcome the shore protection provided by beach replenishment.  However, select landowners recently have refused to confer such easements without compensation, creating a significant “hold out” issue that has stalled several large projects. 

At least one town along the 18-mile long, narrow spit of sand known as Long Beach Island—the Borough of Harvey Cedars—chose to exercise its eminent domain authority to secure easements from these holdouts in the face of particularly monumental beach erosion.  However, certain landowners were displeased with the Borough’s offered price of $300.  And, as reported on this blog two months ago, an appellate panel in Borough of Harvey Cedars v. Karan affirmed a jury verdict awarding one of these oceanfront landowners $375,000 in (additional) takings compensation, based on the fact that the project included raising the height of a sand dune by up to three feet in a manner that reduced the property owner’s view of the ocean.  Touting the shore protection value of sand dunes, the Borough’s Mayor, Jonathan Oldham, admitted that the increase in the height of the dune affected the view from the landowner’s first-floor dining room, but asked, “What do you want, the view or the house?”

Property scholars have long debated whether and how courts should consider the reciprocal individualized benefits that the government’s use of condemned land imparts on the condemnee as an offset to the condemnation award (as opposed to the general benefits the project provides for the public at large, which most agree should not be considered an offset).  Identifying and evaluating offsetting benefits can be quite difficult, and judicial efforts to do so have proven quite varied.  Some courts have held that benefits must include only those directly conferred from the government’s action; others have considered a far wider range of benefits.  (In this way, the issue mirrors one in the regulatory takings context, where evidence that a landowner receives an “average reciprocity of advantage” from the regulatory act at issue can serve as a bar to any recovery at all.) 

In Karan, the appellate court assumed that special benefits can be taken into account in New Jersey condemnation cases, but held that the replenished beach and dunes directly adjacent to Karan’s property did not confer a special benefit in this particular case.  The statement of the issue on appeal prepared by the state’s Office of the Clerk asserts: “Did the public construction of a ... dune to protect against hurricanes and severe storms, for which the municipality condemned an easement on the homeowners' beachfront property and which partially blocks their ocean view, confer a special benefit on the property beyond the general benefit for which the dune was constructed?” However, such statements are neither reviewed nor endorsed by the Court.  It is not entirely likely the state’s highest court granted certiorari simply to assess the fact-intensive application of an acknowledged legal doctrine.  Instead, the Court may have taken the case to provide broader guidance on the range of direct and indirect—and short and long term—benefits that New Jersey’s lower courts are to consider in accord with this doctrine.  As renowned property scholar Hanoch Dagan has noted, “Reciprocity of advantage is a familiar concept in takings jurisprudence. Nonetheless, in law - as well as in life - reciprocity is a contested concept that admits of different conceptions.”

Stay tuned to the Environmental Law Prof Blog for updates on this important takings case.

-Tim Mulvaney

In Memory of Elinor Ostrom

Elinor Ostrom died yesterday after a battle with cancer.  The last time I heard her speak (less than a year ago), a student asked her something like, “Given all the political barriers to dealing with climate change, do you think we adequately address the problem?”  Her response was this simple:  “We can, so we must.”  After a pause, she then went on to describe in some detail what needed to be done in what seemed a to-do list for the ages.  In this interaction, as in her her life, she focused on the possibilities, not the challenges they presented, and then went to work. 

When she graduated as an undergraduate in 1954 from UCLA, it was not an easy thing for a woman to aspire to academia.  She began her career and a personnel manager, and later returned to UCLA for a masters degree and then a PhD.     She started her career at Indiana University, and ultimately succeed in earning tremendous respect within her field of study.  Ultimately, she developed a way of thinking that served--and will continue to serve--as the foundation for scholarly agendas for thousands of other academics.  Her life’s work ultimately earned her a Nobel prize. 

Her best known work focuses on the commons.  This work is rooted in a few optimistic ideas:  ordinary people can overcome extraordinary problems; those that seem uneducated and powerless are often extremely clever and capable; selfishness often loses out to the common good; and human culture can be good at policing itself.  The work she has completed and inspired shows that these optimistic ideas often empirically play out in a diverse range of resources, from fisheries to the radio spectrum.  Furthermore, this literature demonstrates that more success stories are within our grasp if society’s institutions are reshaped correctly.  Her guidance has literally left a lasting mark on resource managers world-over and can and should be credited for successes that have kept food on many communities’ tables.

As someone who cares deeply about her ideas, I am not sure how the study of the commons will survive without the additional insights she had to offer or how the interdisciplinary community that furthers her work will manage without the rallying call from her powerful, yet folksy voice.  However, this much I have learned from Lin: we can, so we must.

-- Brigham Daniels

"The Race for What’s Left: The Global Scramble for the World’s Last Resources"

Yale Environment 360 has posted a fascinating interview with Michael Klare, professor of peace and world security studies at Hampshire College in Massachusetts. Klare has recently written a book titled "The Race for What’s Left: The Global Scramble for the World’s Last Resources," which "describes how the world economy has entered a period of what he calls 'tough' extraction for energy, minerals, and other commodities, meaning that the easy-to-get resources have been exploited and a rapidly growing population is now turning to resources in the planet’s most remote regions — the Arctic, the deep ocean, and war zones like Afghanistan. The exploitation of 'tough' resources, such as “fracking” for natural gas in underground shale formations, carries with it far greater environmental risk." You can read the full interview here.

- Blake Hudson