Environmental Law Prof Blog

What is ACUS, you may ask...

Just how many federal administrative agencies are there?  Judging from the ones that start with A, there are at least several hundred. Of course, many of these agencies face similar issues and challenges, particularly relating to administrative procedure.  For this reason, various presidents since the 1950s have supported the existence of yet another federal agency with the objective of conducting studies and making recommendations for improving how agencies work.  Such an agency, the Administrative Conference of the United States, or ACUS, was established on a temporary basis first, and then permanently beginning in the mid-1960s.

Since early this year, I have been a consultant to ACUS on its project regarding how federal agencies use Third-Party Inspections and Certification.  ACUS also currently has projects on topics such as Cost-Benefit Analysis at Independent Agencies, Government in the Sunshine Act, and Social Media in Rulemaking.  So ACUS is doing some really neat work, but you may not have heard of it.  Actually, I have found in my interviews with agency officials for my project that a lot of them haven’t heard of it either. So here’s a little ACUS-education: 

1.  ACUS has had two lives: then and now.  Although it was established as a permanent agency by the Administrative Conference Act of 1964, it was defunded in 1995. It was reauthorized in 2004 (but not funded), and then reauthorized again in 2008 and funded soon after.  Its first post-reauthorization chairman, Paul Verkuil (President Emeritus of the College of William & Mary, former Dean of the Tulane and Cardozo Law Schools, former faculty member at the University of North Carolina Law School), was confirmed by the Senate in March 2010.

2. ACUS has a 10-person Council appointed by the President that decide what projects ACUS will pursue and a 101-member Assembly that adopts formal recommendations that come out of those projects.  A consultant like me or an internal staffer prepares a report and suggests possible recommendations; an ACUS committee reviews the report and formulates proposed recommendations; and the Assembly meets twice a year to debate and vote on proposed recommendations.

3. Since its reestablishment, ACUS has made fourteen formal recommendations.  In its first lifetime, ACUS made about two hundred.  After making a recommendation, ACUS may host workshops, symposia and other events in coordination with government, academia, and industry to help agencies implement ACUS recommendations.

And just in case you want to read more about ACUS, here are two essential pieces:

Paul R. Verkuil, What the Return of the Administrative Conference of the United States Means for Administrative Law, 1 Michigan Journal of Environmental and Administrative Law 17 (2012).

Tori M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 Arizona State Law Journal 19 (1998).

- Lesley McAllister

India's Energy Future

600 million people without power, stranded transportation systems, and general chaos. This was the state of affairs in Northern India, where eight states lost power for upto 12 hours. The reason? Delhi, Punjab, and Haryana, apparently overdrew power from the grids in the Northeastern states.

The Central Electricity Regulatory Commission (CERC) has issued notices to ministers in charge in the concerned states. In the meantime, however, the reality is that millions of people and innumerable services, including performance of surgeries, were postponed. The massive power failure, dubbed as the world's largest to date, underlines India's energy problem. This year, a poor monsoon, has not only translated into soaring heat, but also increased energy use from hydropower sources that are likely facing serious strain. What is India to do?

At least one opinion suggests fracking. The nuclear energy option, of course, is under serious consideration. Of course, while these solutions may in theory address India's energy problem, the elephant room in the room--global warming--should not be ignored. If scientific predictions of a warmer planet unfold, it is not simply sufficient for India (or any other nation for that matter) to only explore energy diversification. It should synthesize energy diversification with potential climate impacts, especially the best energy source required to adapt to vagaries of the climate.

 

--Deepa--

Revised Call for Papers by Pace Environmental Law Review

The Pace Environmental Law Review (PELR) will devote its winter journal to pressing issues in the development and regulation of nanotechnology and biotechnology. Jesse Glickstein and Sarah Wegmueller, the acquisition editors of PELR, would like to invite you to submit for publication an article or essay that discusses the intersection between nanotechnology and/or biotechnology and environmental issues. Based on your expertise, we encourage you to take an interdisciplinary approach to nanotechnology and/or biotechnology from legal and other perspectives, including technology, science, public health, economics, or policy. Authors should send an abstract and cover letter to [email protected]. The deadline for submissions of article proposals is September 30, 2012. Please feel free to email Jesse ([email protected]) and Sarah ([email protected]) with any questions.

--DB--

Pepperdine University School of Law Hiring in Environmental Law

Pepperdine U. School of Law is seeking to fill one or more tenure-track positions on our faculty, as well as a position for an experienced clinician. Shelley R. Saxer ([email protected]) is the chair of the faculty appointments committee. The entry-level subcommittee includes Barry P. McDonald (vice-chair) ([email protected]), Robert Anderson IV, and Naomi Goodno. The lateral subcommittee includes Robert J. Pushaw (vice-chair) ([email protected]), Thomas J. Stipanowich, and Maureen Arellano Weston. Applicants from all subject areas are welcome. Some of the teaching subjects of special interest to us this year include Intellectual Property, Entertainment/Media Law, International Law, Environmental Law, Criminal Law, Land Finance/Real Property Law and Alternative Dispute Resolution

 

--DB--

In Case You Missed It - Week of July 22-28

* "The U.S. is the most environmentally sustainable country in the world, except all the others."

* "The Huge Shift in Our Energy System That's Happening Right Now in 1 Chart." 

* Global investment in clean energy rose 24% in the second quarter of 2012.

* Some good news on energy trends?

* At the rate population is growing it would take 6 hours to fill Yankee Stadium.

Keeping ecotourists out of the sanctum sanctorum for tigers

So, ecotourism has been considered an important component of conservation efforts. The Indian Supreme Court, however, has decided that tigers may now also be saved from ecotourists. The highest court was responding to a public interest litigation (PIL) that challenged safari tours in the core zone of the tiger reserves. The decision is an important one since it could be an important turning point for the reportedly 1700 tigers in India. A newsreport regarding the decision is available http://www.deccanherald.com/content/266647/no-tourism-core-areas-tiger.html.

--Deepa--

What's Fracking Gotta Do With Rajasthan?

As the legal debate over fracking rages, the flames are spreading in Rajasthan, India. The region is known for guar gum cultivation, which is used as an ingredient in some spices. The bean has now transformed into an important ingredient for fracking and reportedly promises many riches for farmers. Investment is naturally high and farmers will perhaps reap some of the reward. A copy of the report is available at http://www.ndtv.com/article/india/rajasthan-s-farmers-strike-gas-drilling-gold-with-tiny-bean-244179.

What this development signifies is that the environment and environmental issues are global. Now, decision regarding fracking in the United States  will inevitably affect farmers in Rajasthan. Perhaps, the market developments in India will implicitly influence decisions in the United States and elsewhere. This also demonstrates that environmental issues always evoke economic issues.

And while I am on the topic of fracking, I would recommend this succinct op-ed on fracking by Professor Joseph Di Mento: http://www.law.uci.edu/pdf/djournal_dimento_070912.pdf.

--Deepa--



Sandel's "The Moral Limits of Markets" Takes on Walrus Hunting

My summer reading list included Michael Sandel’s new book, “What Money Can’t Buy: The Moral Limits of Markets.”  Sandel explores a litany of modern examples where, he avows, market values arguably have cast aside nonmarket values.  For instance, he describes a program in Dallas that pays second graders $2 for each book they read, a North Carolina-based outfit that pays women with drug addictions $300 to undergo sterilization procedures, and lobbyists’ practice of paying companies who employ homeless people to stand in line for Congressional hearings.  Several of Sandel’s examples arise in the environmental realm.  One particular interesting section of the book is entitled “Paying to Shoot a Walrus.” 

Sandel describes how the centuries-long practice of hunting the Atlantic walrus in the Arctic region of Canada ultimately decimated the walrus population, prompting Canada to ban walrus hunting in 1928.  The ban included only a small exception for the Inuit, an aboriginal group of subsistence hunters.  In the 1990s, the Inuit convinced the Canadian government to allow it to sell the right to kill some of their walrus quota to big game hunters.  Today, select hunting enthusiasts pay upwards of $7,000 to shoot a walrus, under the guidance and supervision of the Inuit. 

While Sandel cites another writer’s comparison of walrus hunting under Inuit supervision to “a long boat ride to shoot a very large beanbag chair,” one hunter recently described the experience as “a unique, exciting, and rewarding hunt.”  Hunters may seek to land a walrus in the course of endeavoring to kill one of each specimen on hunting clubs’ “lists.”  (For example, the Arctic “Grand Slam” includes the caribou, musk ox, polar bear, and walrus.)  Moreover, through the practice of supervising walrus hunts, the Inuit create jobs, collect fees, and retain the meat, skin, blubber oil, and tusks as they always have done. 

In describing these benefits for non-Inuit hunters and the Inuit alike, Sandel emphasizes that “markets don’t pass judgment on the desires they satisfy.”  Yet he suggests that allowing the Inuit to sell the right to kill walruses may push the limits of markets too far, crowding out morality-based objections.  He notes two over-arching reasons:

 “One is that this bizarre market caters to a perverse desire that should carry no weight in any calculus of social utility.  Whatever one thinks of big-game hunting, this is something else.  The desire to kill a helpless mammal at close range, without any challenge or chase, simply to complete a list, is not worthy of being fulfilled, even if doing so provides extra income for the Inuit.  Second, for the Inuit to sell outsiders the right to kill their allotted walruses corrupts the meaning and purpose of the exemption accorded their community in the first place.  It’s one thing to honor the Inuit way of life and to respect its long-standing reliance on subsistence walrus hunting.  It’s quite another to convert that privilege into a cash concession in killing on the side.”

Regardless of one’s perspective on the merits of markets in protecting the environment (or one’s perspective on walrus hunting or much of anything else), Sandel’s latest work is an interesting, thought-provoking read.

-Tim Mulvaney

Reflections on Precaution, Regulation, and Cell Phones

For the last two years, I've been using an iphone 3G that didn't work very well.  I couldn't hear without putting it on speaker phone and the reception was poor, especially in my home.  But I kept using it because it was unusually low radiation for a smartphone.

Yesterday, as part of a broader movement towards functionality I've been trying to make this summer, I decided to switch providers to get on a lower cost family plan and have better reception.  Of course, providers make it so that you have to switch phones to do this, and so I faced a dilemma; I wanted an iphone, but the only option was the higher radiation 4G phones.  So, I did some research into cases, and discovered a company named Pong Research that claims to make cases that massively decrease cell phone radiation (a claim which seems to have been verified by reputable independent testing).  While looking at the various user reviews of these cases, one comment jumped out at me: someone queried whether if it was relatively straightforward to reduce radiation so much, why not just require cell phone manufacturers to include this technology.

I've been wondering ever since about this question, and would welcome thoughts from blog readers who know the law regulating cell phone radiation better than I do.  The scholarly literature on this topic is still relatively limited, and litigation is still emerging.  It seems to me that the underlying issue relevant to environmental law professors is what precaution means in this context and how that should influence an appropriate response.  At what level should standards be set, given that they vary greatly around the world?  If technology exists to bring down radiation to significantly lower than those standards, should that be required or optional? How should this issue be situated within the broader conversation about risk, cost benefit, autonomy, and the precautionary principle?  I think these questions are hard, especially when considered in the context of environmental justice and the unequal choices people have regarding risk.

In the meantime, I'm cautious and so am trying to limit my family's exposure to this and other things that I perceive as risky.  I similarly no longer microwave plastic and opt out of the airport scanning machines, even when I'm given a lecture about how much more radiation I get from flying itself.  I'm not sure how these choices would fit within a fully rational risk assessment--I drive most days after all, among other choices--but I do my best to navigate the simultaneous information overload and underload that I experience.

Hari Osofsky

Forests on Fire - With Very Different Causes for Concern

We are currently witnessing the largest natural disaster ever, by area, in the U.S. (see image of the drought coverage area above). The scope of the disaster leads to a variety of harms, not the least of which is increased risk of fire, as evidenced by the recent fires near Colorado Springs, Colorado. Scientific American reports that this may just be the beginning, as climate change becomes the match, so to speak, that lights the "fire deficit" witnessed in the western U.S. over the last 100 years. In fact, for most of our recent history the frequency of fire activity has been directly correlated with climate change - until about 100 years ago, when fire suppression efforts disassociated the two. In only the last 30 years, fire frequency in the West has increased more than 300 percent, while the annual acreage burned has increased 500 percent. Ultimately, "[a]s the West continues to warm, that [fire] debt will come due – possibly with interest – triggering fires that are fiercer and harder to contain," scientists warn.

Meanwhile, on the other side of the globe forest fires are increasingly concerning for entirely different reasons - highlighting yet again the intersection between environmental, energy, and natural resource vectors. The Chernobyl nuclear accident laced the mostly pine forest 30 km exclusionary zone around Chernobyl with a variety of radioactive isotopes. Much of this forest constitutes "dying radioactive plantations" that are "considered too dangerous and expensive to clear." If they catch on fire, which is a concern, "one expert likens the potential effect to setting off a nuclear bomb in Eastern Europe. Wind could carry radioactive smoke particles large distances, not just in Ukraine, but right across the continent." But even though this potentiality may be lower on the probability scale, a common occurrence is the numerous Ukraine firefighters frequently exposed to smaller forest fires they extinguish to avoid a major disaster. Climate change rears its ugly head once more, as it may also increase the likelihood of radioactive forest fires.

We can hardly escape the increasing evidence of climate change's effects, but perhaps no disaster shines quite as bright of a light on climate change as forest fires.

- Blake Hudson

In Case You Missed It: The Week of July 15-21

The widest U.S. drought in more than half a century is forecasted to worsen

The D.C. Circuit decided American Petroleum Institute v. EPA, upholding the E.P.A.’s 2010 revision of its National Ambient Air Quality Standard for nitrogen oxide

A report released by staff of the House Natural Resources Committee at the direction of Rep. Ed Markey (D-MA) revealed a significant increase in mountaintop removal coal exports from Appalachian mines over the past several years

The E.P.A. announced that it plans to review its new standards for mercury and multiple other airborne emissions, thus delaying the implementation of new rules that would have impacted the construction of several new coal-fired power plants in Georgia, Kansas, Texas, and Utah

Nationwide Mutual became the first major insurance company to declare that it will not cover losses associated with hydraulic fracturing in light of its conclusion that “exposures…are too great to ignore”

Spending Power Bargaining After Obamacare

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future.  After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.

By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid.  Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others.  Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.

These partnerships reflect the complex way that the Constitution structures federal power, through both specific and open-ended delegations of authority.  Specific congressional powers include the authority to coin money, establish post offices, and declare war.  More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks.  Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority.  (Of course, there is some overlap between the two, but that’s another story and a previous blog.) 

The Spending Clause authorizes Congress to spend money for the general welfare.  Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence).  Sometimes, Congress just funds state programs that it likes directly.  But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see.  In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children). 

In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach.  A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law.  Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.

Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal.  If they don’t like the attached strings, they don’t have to take the money.  Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration.  In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations.  No law has ever run afoul of these broad limits, which have not since been revisited—until now.

In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it.  All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms.  Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously.  But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled.  Even though they really wanted out, they claimed, now they were stuck.  The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please. 

In deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership.  Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal.  We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy.  (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”)  Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to.  No coercion, no constitutional problem. 

But then the decision takes a key turn.  What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs.  Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive.  By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion.  To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion.  Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics).  The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.

Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid.  For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.”  She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”

On these points, Justice Ginsburg is right.  The decision offers no limiting principle for future judges or legislators evaluating coercive offers.  “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that.  Moreover, the rule is utterly unworkable.  No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum).  The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge.  And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir. 

Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership.  It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent.  But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding).  The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes.  (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.) 

It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way.  Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power.  But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system.  Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse.  Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.

Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem.  To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership.  Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review.  But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.

--Erin Ryan 

--A version of this essay first appeared on OUP Blog, and later on ACS Blog. 

 

Water Quality Standards, Fish Passage, and EPA

Last week, EPA determined that the State of Maine had illegally adjusted its water quality standards by preventing fish passage at two dams along the St. Croix River.

To anyone who follows water quality or fisheries issues, the preceding sentence will seem a little bit surprising.  In Maine, as in many other places in the country, squabbles over fish passage began in the colonial era and have resurged in recent years.  Water quality standards also are an ongoing issue.  But the two don’t usually go together unless Clean Water Act section 401 is involved, which wasn’t the case with the St. Croix dams.   More typical fish passage controversies arise in the context of FERC’s relicensing processes for hydroelectric facilities, with the Fish and Wildlife Service or NOAA Fisheries, not EPA, serving as the lead governmental advocates for improved passage.  And even when section 401 is involved, a state agency, not EPA, is primarily responsible for assessing whether the proposed license will comply with state water quality standards (see, e.g., PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700 (1994).  So the juxtaposition of direct EPA involvement, fish passage issues, and water quality standards is something new.

A little more background should put the controversy in context (for newspaper coverage with much more background, see here and here; the map at left also comes from the Portland Press Herald stories).  For years, the St. Croix watershed was effectively closed to alewife migration.  Alewives, or river herring, are anadromous fish.  Their runs in many Maine rivers once numbered in the millions, but because of pollution and dams, present populations are much lower (more on that here), so much so that the Natural Resources Defense Council recently petitioned for alewives to be listed under the Endangered Species Act.  For a while the St. Croix was a hopeful exception to those trends.  By the 1980s, water quality had improved enough that alewives could migrate up the watershed and access their traditional spawning grounds, and the run had recovered to approximately 2.6 million fish.  That scared local fishing guides, who feared adverse impacts on the bass populations their clients preferred to catch (subsequent research found those fears to be unfounded), and they successfully lobbied the Maine Legislature to close fish passage at several dams.  Later legislation resulted in one dam opening, but over 90% of the watershed remains closed.

In May, the Conservation Law Foundation sued EPA, arguing that the dam closure represented a de facto change in Maine’s water quality standards, and that EPA has a non-discretionary duty to review changes in water quality standards.  CLF was joined in their advocacy by lobstering groups (alewives are the best lobster bait around) and by the local Native American tribes, one of which had previously supported the dam closures.  In a letter last week, EPA agreed with essentially all of the plaintiffs’ legal claims.  What happens next isn’t exactly clear; the questions about legal next steps could form a cruelly complex federal courts/remedies/constitutional law/environmental law exam question.  But what’s already happened should be intriguing to anyone interested in the law of water quality or fisheries.

-Dave Owen

A Few Thoughts and a Reading List on … FRACKING

I just finished teaching a 1-unit summer course called “Hydraulic Fracturing (“Fracking”) Law and Policy.” Given the timeliness of the topic, I thought I’d share the reading list, in case it’s useful to anyone, and give you my initial take on this complex and fascinating topic.

First, my take on the issue:

I thought “fracking” was a new problem. Turns out it’s not, or at least not primarily so. What’s new is that the advent of horizontal drilling technology has opened a lot of areas of the country to new or expanded oil and gas exploration. But most of the serious risks of that exploration are the same risks we’ve seen everywhere the industry operates: the risks to human health and the environment from well construction, operation, and inevitable abandonment; the risks of spills during the production and transport of oil or gas; the risks of well explosions and leaks; the risks to communities from boom-and-bust economic development.

Yes, fracking also creates new problems, most notably front-end water demand (fracking a well requires an average of 5 million gallons of water) and back-end treatment and disposal. But the principal concern about fracking is not the fracking, per se. The principal concern, in my view, is that we don’t adequately regulate issues like stormwater runoff from well pads, and cement quality in oil and gas well construction (see the BP spill)—that is, longstanding and well recognized environmental and public health issues that are garnering new attention in areas where fracking has “taken off.”

I don’t mean to imply that these problems are any less important because they are longstanding. Rather, my point is that we should stop thinking about fracking as posing new and different risks and confront the real problem: an oil and gas industry that has benefited from a lot of regulatory exemptions that come back to haunt us everywhere and in every way that industry is active. (By the way, Hannah Wiseman’s earlier post on this blog about oil and gas exemptions from environmental regulation gives a great overview and is available here)

Now for the reading list:

We tried hard to keep this quite balanced, and to present a story that would help students think about “appropriate regulation” of fracking, since the technology seems to be here to stay.

The entire reading list is available here.  A synopsis of topics follows.

We organized the course into four 3-hour blocks. On day 1, the students read background material on natural gas (energy and manufacturing uses, pricing, geographic distribution of natural gas plays, etc.); the science and technology of hydraulic fracturing (and how it compares to traditional oil and gas drilling); the ongoing debate about the GHG footprint of natural gas; and the terminology of the fracking debate. In discussing these issues with the class, we made use of some great video presentations put together by EnergyfromShale (available here), by the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (available here) , and by the New York Times (available here).

On day 2, the students read background material on the environmental and public health risks of fracking, as well as some background material by Paul Slovic on risk perception. During class, Khary Cauthen, Washington Representative for the American Petroleum Institute, provided one set of industry perspectives on this issue.

Day 3’s reading focused on federal regulatory approaches to fracking, including some background on the most recent EPA and BLM regulatory actions, and the ongoing EPA study of water quality in areas affected by fracking.

For day 4, students read about state approaches to fracking, with particular focus on two northeast states that have quite different takes on fracking regulation, New York and Pennsylvania. Two class visitors then gave students their insights on those two states’ approaches to fracking: Haley Stein, Assistant Corporation Counsel in the New York City Law Department, who spoke about the unique risks of and regulatory approaches to fracking in New York State; and Jessie Thomas-Blate, Coordinator of American Rivers’ Most Endangered Rivers Campaign, who spoke about the same topics for Pennsylvania.

Finally, I also wanted to be sure everyone is aware of the terrific New York Times series, by Ian Urbina and others, that addresses many of the social and environmental issues around fracking. The homepage for the series is here.

--  Guest post written by Amanda Cohen Leiter, Associate Professor, American University, Washington College of Law

New Book from Professor Robin Craig!

Professor Robin Kundis Craig, of the University of Utah’s S.J. Quinney College of Law, has published Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change.  The publisher, Edward Elgar Publishing, has released the following announcement:

Comparative Ocean Governance examines the world’s attempts to improve ocean governance through place-based management – marine protected areas, ocean zoning, marine spatial planning – and evaluates this growing trend in light of the advent of climate change and its impacts on the seas.

This monograph opens with an explanation of the economics of the oceans and their value to the global environment and the earth’s population, the long-term stressors that have impacted oceans, and the new threats to ocean sustainability that climate change poses. It then examines the international framework for ocean management and coastal nations’ increasing adoption of place-based governance regimes. The final section explores how these place-based management regimes intersect with climate change adaptation efforts, either accidentally or intentionally. It then offers suggestions for making place-based marine management even more flexible and responsive for the future.

Environmental law scholars, legislators and policymakers, marine scientists, and all those concerned for the welfare of the world’s oceans will find this book of great value.

I am very excited to read this timely, relevant, and important book, and of course it is always a pleasure to stay current with Robin’s latest work!

- Keith Hirokawa

USD Climate & Energy Law Symposium, SAVE THE DATE - Nov. 9, 2012

The University of San Diego School of Law will host its Fourth Annual Climate & Energy Law Symposium on Friday, November 9. The 2012 symposium will bring together leading academics and practitioners to explore the theme of Law in a Distributed Energy Future with questions such as:

• How should the rules that govern the electricity grid change to incorporate distributed generation?

• What possibilities exist for generating energy at the neighborhood and community levels?

• What legal and policy innovations at the federal, state and local levels are most needed to usher in a distributed energy future?

Confirmed speakers include:

Carla Peterman, Commissioner, California Energy Commission (Keynote)
Scott J. Anders, Director, Energy Policy Initiatives Center, University of San Diego School of Law
Sara C. Bronin, Associate Professor of Law & Program Director, Center for Energy & Environmental Law, University of Connecticut School of Law
Timothy Duane, Associate Professor of Law, Vermont Law School
Joel B. Eisen, Professor of Law, University of Richmond School of Law
Michael B. Gerrard, Andrew Sabin Professor of Professional Practice, Columbia Law School
Lesley K. McAllister, Stanley Legro Professor in Environmental Law, University of San Diego School of Law
J.B. Ruhl, Matthews & Hawkins Professor of Property, Vanderbilt Law School
Katherine Trisolini, Associate Professor of Law, Loyola Law School
Hannah Wiseman, Assistant Professor, Florida State University College of Law

Join us on the beautiful campus of the University of San Diego:

- Lesley McAllister

In Case You Missed It -- Week of July 8 -14

- Big news on climate change litigation and the public trust doctrine, blogged about right here

- EPA released a draft evaluation of Iowa's NPDES program for CAFOs, available here

- Check here for a thoughtful op-ed about considering a world without coral reefs

- The federal circuit court of appeals awarded damages to nuclear power plant owners that incurred costs for spent nuclear fuel storage

- The Obama Administration released a report on progress and next steps for restoring the Everglades

 

 

 

 

Call for Papers: Sabin Colloquium on Innovative Environmental Law Scholarship

Check out this great Call for Papers for junior environmental law scholars... with thanks to Michael Gerrard:

Call for Papers

 

SABIN COLLOQUIUM ON INNOVATIVE ENVIRONMENTAL LAW SCHOLARSHIP
Columbia Law School
New York, New York
May 2-3, 2013

 

This Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.

 

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.

 

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.

 

To enter, submit a cover letter, an outline or concept paper of 10-20 double-spaced pages, and a C.V. to [email protected] by January 15, 2013.  If an article has already been drafted, please just submit a summary of no more than 20 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.

 

Authors of selected papers will be notified by March 15.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 2, and all day on May 3) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

 

Selection panel:

 

Jonathan Cannon -- University of Virginia
Ann Carlson -- University of California at Los Angeles
Daniel Farber -- University of California at Berkeley
Jody Freeman -- Harvard Law School
Michael Gerrard -- Columbia Law School
Douglas Kysar -- Yale Law School

--Emily Meazell

Must Read Energy Books, Redux

Last summer, I commented on Alexis Madrigal's list of "13 Energy Books You Need to Read."  Madrigal's list is insightful and interesting, and stands up to the (short) test of time.  It's still quite pertinent.

Over the last year, however, I've come upon a number of other energy books that also are worth diving into.  Some are old; some are new.  Given that there is still time in the summer to tackle some of these, I thought it might be worth adding to last year's list.

In no particular order:

1. Children of the Sun: A History of Humanity's Unappeasable Appetite for Energy by Alfred W. Crosby


2. Pyramids of Power: The Story of Roosevelt, Inusll and the Utility Wars by M.L. Ramsay


3. From Edison to Enron: The Business of Power and What It Means for the Future of Electricity by Richard Munson


4. The Third Industrial Revolution: How Lateral Power Is Transforming Energy, the Economy, and the World by Jeremy Rifkin


5. Energy for Sustainability: Technology, Planning, Policy by John Randolph and Gilbert M. Masters


6. The Quest: Energy, Security, and the Remaking of the Modern World by Daniel Yergin


7. Ending Dirty Energy Policy: Prelude to Climate Change by Joseph P. Tomain

Do you have more to add?

-Lincoln Davies

Texas Court Finds the Atmosphere Protected under the Public Trust Doctrine

Earlier this week, Texas trial court judge Gisela Triana ruled that the atmosphere is part of the common law public trust, such that the state bears the responsibility to preserve and protect it for future generations.  Several scholars, including Mary Wood at the University of Oregon School of Law, have advocated this theory for some time; until this case, however, courts regularly have dismissed such claims as addressing public policy matters that are solely for consideration and action by the political branches of government. 

Judge Triana’s interpretation of the public trust is particularly broad.  In the face of the Texas Commission on Environmental Quality’s claim that the public trust doctrine is applicable only to water, Judge Triana wrote that the public trust doctrine “includes all natural resources of the state.”  Nevertheless, she found appropriate the state’s “refusal to exercise its authority” to regulate greenhouse gases “a reasonable exercise of its discretion” in light of other ongoing climate litigation, including Texas’ joining multiple sister states in challenging the Environmental Protection Agency’s climate rules (which the D.C. Circuit recently upheld). 

(Download Judge Triana's Letter Ruling)

Nearly a dozen similar suits claiming that the atmosphere is protected under the public trust doctrine are proceeding in other states.  Stay tuned to the Environmental Law Prof Blog for any important updates in this developing area of law.

-Tim Mulvaney