Environmental Law Prof Blog

Fifth Circuit’s Reversal on Katrina Litigation Leaves Flood Victims Gasping for Air

I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers for flood damage during Hurricane Katrina, a case that could have exposed the federal government to billions of dollars in damages over the next several years. Judge Smith’s opinion reversed a decision he wrote just six months ago, representing the same three-judge panel, which had ruled the plaintiffs’ claims were legitimate and must move forward.

Why the switch? The new opinion suggests it is because the first time around all three judges somehow misunderstood the facts. But that’s unconvincing. A look at the court’s earlier opinion and the trial court’s original findings of fact show that the Fifth Circuit got it right the first time. What’s more, this sudden reversal could deny thousands of flood victims the means to build back their lives, while narrowing the chances that the government can be held accountable for even the most pedestrian mistakes. .I’ll return to these points in a moment, but first some background.

The Katrina Canal Breaches Litigation involves claims by residents of New Orleans and St. Bernard Parish for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet (MR-GO), a navigation channel that has since been de-authorized and “plugged” for safety reasons. (I last blogged about this case here.) Plaintiffs argued that the Army Corps's negligence in design, construction, and maintenance of MR-GO increased Katrina’s storm surge and made the levee system more vulnerable than it otherwise would have been. Plaintiffs were particularly troubled by the Corps’s refusal to prevent erosion by armoring the banks at the time of construction and in the several years thereafter. The lack of armor—or “foreshoring,” as engineers call it—caused the channel’s width to expand considerably, leaving a perfect path for a bulldozing hurricane.

The Corps never refuted the factual claims and the trial court later characterized the agency’s actions as “negligent.” But the Corps argued its acts were shielded by two forms of government immunity, one based on the Flood Control Act of 1928 and the other based on the traditional doctrine of sovereign immunity. The first was correctly rejected by both the trial and appellate courts. The second is the focus of my analysis here.

Sovereign immunity generally bars suits against the government. The idea derives from the British fiction that “the King can do no wrong,” and thus cannot be hauled into his own court. Today that seems unfair, so a statute called the Federal Tort Claims Act waives the government’s sovereign immunity for personal injury claims caused by negligent acts as long as the act cannot be reasonably characterized as involving a balance of “policy” options.

In this case, the Corps tried to argue its failure to armor the channel was a policy choice that weighed public risk against construction cost. But neither the trial court nor the appellate court (the first time around) bought the argument. That’s because all of the trial testimony showed that Corps officials never believed the erosion posed a safety risk. They were tragically wrong about that; in fact, every scientific study available at the time said they were wrong about that. But the point is that the decision to let the channel erode happened not because someone thought the public risk was worth it, but because no one thought there was a public risk. It was as if the Corps were claiming that a crash caused by one of its truck drivers was caused not by the driver’s ignorance of worn-out brakes, but by her choice to balance the risk of worn-out brakes against the cost of replacing them.

But don’t take my word for it. Here’s the Fifth Circuit panel, in its original decision, describing the evidentiary record (italics mine):

The . . . plaintiffs and [friends of the court] point to ample record evidence indicating that policy played no role in the government's decision to delay armoring MRGO.

Then this:

The district court found as a matter of fact that, in . . . maintaining . . . the MRGO, the Corps labored under the mistaken scientific belief that the MRGO would not increase storm-surge risks.

Even the Corps’s own lawyers were willing to concede:

At oral argument in the district court, the United States made the same admission: The Corps “determined that MRGO played no role in major hurricane events” and, “for that reason, the Corps saw no reason” to take any steps to remedy MRGO's dangers.

And when confronted by a single vague quotation intended by the Corps to suggest some policy dimension, the court casually bats it aside:

Against the considerable evidence amassed to suggest that the Corps's decisions were grounded on an erroneous scientific judgment, not policy considerations, the government offers little affirmative evidence: “[I]n the Corps' view, maintaining MR–GO through dredging and raising the levees through separate projects allowed the Corps to maximize its limited resources and to continue operating the MR–GO as a shipping channel as Congress charged it to do.” This quotation is the closest the government comes to arguing that it had policy reasons . . . for delaying MRGO's armoring. But the government's contention cannot stand where there is no record evidence that, because of budgetary constraints, the Corps failed to implement feasible remedial measures or that it ever performed a cost-benefit analysis.

So there it is: the Corps never approached safety as a policy issue because it never understood safety as an issue at all. Corps officials said that. Corps lawyers said that. And, according to the appellate court, the whole “ample record evidence” says that.

And yet, somehow after a few months, all this judicial confidence goes wobbly. I imagine one of the judges waking up in the middle of the night crying, “Caesar’s Ghost! All this time I have misunderstood the facts of that vexing case. I must call the others.” And something like that does indeed appear to have happened, for the next we read in the panel’s do-over opinion:

[T]here is ample record evidence indicating the public-policy character of the Corps's various decisions contributing to the delay in armoring. Although the Corps appears to have appreciated the benefit of foreshore protection as early as 1967, the record shows that it also had reason to consider alternatives (such as dredging and levee “lifts”) and feasibility before committing to an armoring strategy that, in hindsight, may well have been optimal.

We may never know what spirits swayed the jurists at this late date. That’s a shame, because if a federal court is going to backtrack on a case of such magnitude, it owes us some analysis, not a few conclusory statements. If willful ignorance constitutes a policy choice, is there any incompetence that does not?

I’m afraid some will say plaintiffs should never have expected more in the first place. Did anyone really expect a government agency to be held accountable in such an exceptional case? Sure, Katrina was an outlier. But disasters as a category are not; they are the rule, not the exception. If the King can be hauled into court when the stakes are low, the same must be true when the stakes are high.

 

Robert R.M. Verchick

Gauthier ~ St. Martin Chair in Environmental Law 

Loyola University New Orleans

 

Taking Snow?

In recent decades, the federal lands have generated a whole bunch of water rights cases.  The usual fact pattern involves a private party that leases federal lands, and that uses water on those lands.  Under well-established principles of western water law, leaseholders may develop private water rights to water flowing across their leaseholds, and that those rights are defined by state, not federal, law.  That raises issues when the federal government attempts to restrict the leaseholder’s activities, or denies renewal of the lease.  According to at least some leaseholders, such a restriction or denial constitutes an unconstitutional taking of the private water rights.

Most of the cases to raise this issue have involved grazing leases.  However, a federal district court in Colorado is now considering a new variation of this dispute.  National Ski Areas Association v. United States Forest Service involves, as its name suggests, ski areas on federal land. In 2012, the Forest Service issued a guidance document that either (a) clarified that ski areas’ water rights are jointly held with the Forest Service (that’s the Forest Service version); or (b)compelled ski areas to transfer some existing rights into joint ownership, and compelled forest managers to exact joint ownership of other water rights as a condition for future renewal of leases (that’s the ski area version).   The National Ski Areas Association sued, opposing what they described, in a press release, as “this outright taking of private property by the U.S. Government.”

So will this be the next major water rights/takings case?  Probably not.  The ski areas’ primary argument is a classic procedural administrative law claim; the association argues that the guidance document was actually a legislative rule that should have gone through notice and comment.  The ski areas also bring several other administrative law arguments, but the takings claim, though central to their political and public relations offensives, appears nowhere in the their brief.  That doesn’t mean the issue is just rhetorical fluff; the ski areas may have just decided that a facial administrative law challenge has better prospects than a facial takings challenge, and may well be reserving the legal takings arguments for a later case (if this initial one fails).  And no matter how the court (and, probably, the 10^th Circuit) resolves the case, it will need to answer some questions about the water rights at issue.  Still, in this round, at least, the takings issue won’t be squarely presented.

Nevertheless, this is a case to watch.  There are a lot of federal leaseholders with water rights, and whatever the district court says will be of great interest not just to ski areas and cattle ranchers, but also to holders of oil and gas leases, to miners, and, of course, to environmentalists.  So stay tuned.

- Dave Owen

Emerging Issues in the Arctic Part 7: Coda

Last spring, I set out to blog about developments in the Arctic, hoping to identify theoretical perspectives, policy angles, legal conflicts, cool technologies and news items of interest. It was easy enough to predict that the eyes of the world would be turned on the Arctic region this summer, to see how much ice melted, how many cargo ships passed through the Northern Sea Route and the Northwest Passage, and whether Shell Oil would succeed in drilling for oil in the Beaufort and Chukchi Seas. Well, the extent of ice melt has set records. Russia continues to industrialize along the Northern Sea Route. And commercial shipping across the Northwest Passage is finally happening. But, despite having sent 2 drill ships, more than 20 support vessels, a capping stack and emergency equipment into the area, Shell finally announced on September 17 that it will not be drilling for oil and gas in the Arctic in 2012.

How anticlimactic!

How did a result Shell did its best to portray as inevitable become so evitable?

There are two simple explanations: First, earlier this month, as Shell began to drill a top well at a site on the Chukchi Sea, a 30 mile-long, 12 mile-wide, 25-meter thick piece of ice drifted toward the site. The drill ship had to move, and there is no longer enough time to drill a full well. That’s the kind of thing that goes down up in the Arctic. Second, more recently, the company's new containment dome, an important component of its highly scrutinized oil spill response system, was damaged during the final tests being conducted near the port town of Bellingham, Washington. Without the containment dome operating, the Coast Guard would be unlikely to approve of the response system, and the Department of Interior would be unlikely to issue the final permits necessary to drill. So, instead of pressing its luck and trying to drill deep against the odds, Shell will content itself with drilling a number of top wells—which, according to the company do not threaten a blowout or oil spill—and look forward to next year, when it will try again strike oil. 

But there is a more complex explanation, as well: Shell’s decision to scale back its plans is the temporary stopping point in an ongoing dialogue among the company, the oversight agencies, the State of Alaska, national and local environmental groups, native Alaskan communities and the courts that is working and re-working its way through administrative, political and judicial channels. Emily Meazell and Jim Rossi have written a sequence of important pieces exploring the dialogic possibilities of serial litigation in administrative law. (You can start here, go here, and then here). Admittedly, the battle over drilling in the Arctic falls outside Professors Meazell’s characterization of “serial litigation” as an iterative back-and-forth between the agencies and the courts on a particular aspect of a rulemaking or adjudicatory process; yet, I think it falls inside Professor Rossi’s expansion of the “dialogue” concept to incorporate a more generalized perspective on judicial review. For the sake of giving it a name, I would say that what we have here is a prime example of “assault litigation.” Assault litigation involves repeated challenges to a single administrative project—be it a rulemaking or any type of adjudication—brought in a number of different lawsuits spread out over a relatively short period of time and from a variety of legal angles.  

Now, Shell has spent upwards of $4.5 billion and six years working its way over, around, and through various regulatory hurdles and legal challenges (in addition to ice and weather delays and technical glitches) in pursuit of tapping the oil and gas reserves beneath the waters offshore Alaska’s Arctic coastline. Shell lost a case or two in the early days, but judicial review has been favorable of late. In the last six months alone the company has successfully defended a series of lawsuits challenging everything from the leases granting it the right to drill to several different approvals of its emergency oil spill response plans to its air permits. Yet, the assault litigation has had a visible impact on audiences other than the defendant agencies and the courts. Interior Secretary Ken Salazar, technically a defendant in some cases, has been particularly involved, frequently weighing in publicly on the company’s plans and the department’s review of them and making clear that Shell’s operations are being scrutinized not only by engineers and technocrats at Interior, the Coast Guard, and EPA, but also by executive officials operating at the highest political levels. Meanwhile, Congress has introduced legislation that would, among other things, expedite lease sales in the Arctic. Other oil companies have announced that they are backing away from plans to proceed in the Arctic, for the time being, due to “regulatory uncertainty.”

Would the agencies have required as much from Shell as they have in the absence of the assault litigation? (This question leaves aside the question of whether, as plaintiffs claim, the agencies are still not requiring enough.) Would Shell be drilling today, perhaps without a properly functioning containment dome, possibly taking bigger risks on the ice floe, without the increased heat? Does the fact that Shell keeps winning in court indicate that there is something wrong with opponents’ ability to fire multiple challenges to a single project? Does it indicate that something is right? And what does it mean about the fragmented structures of environmental and natural resources law?

Not sure. But I look forward to looking at these questions more closely soon.

While the Arctic may be made safer by the participation, increased application of agency expertise, and greater political accountability encouraged by the assault litigation, Shell’s not drilling this year does not mean that the Arctic is saved. In fact, as the record ice melt, ongoing industrial development, increased shipping and tourism traffic, and oil and gas drilling by other nations in other offshore jurisdictions all make plain, the Arctic, as we have known it for the last four hundred years, is history. And an all-out litigation war is not going to change that.

-- Michael Burger

Senate Passes Thune Bill Unanimously...What next for EU Aviation Directive?

Earlier this week, the U.S. Senate unanimously passed the Thune Bill, which prohibits and protects airlines from complying with the European Union's Aviation Directive. http://www.reuters.com/article/2012/09/24/uk-usa-carbon-airlines-idUSLNE88N00K20120924. The Directive, implemented earlier this year, requires all commercial carriers landing and taking off from airports EU nations to pariticpate in the EU's emissions trading scheme [ETS]. The Directive has faced strong opposition, notably from U.S. airlines and governments such as China, India, and the United States. The governments of China and India have explicitly prohibited their airlines from complying withthe EU Directive and China is reportedly cancelling or reducing its Airbus orders in retaliation.

The United States Senate has passed a bill authorizing a similar ban on compliance with the Directive. The Bill, S. 1956, or the "Thune Bill," as it is known after its sponsor Senator John Thune (R-SD), gives the Secretary of Transportation the power to prevent airlines from complying with the EU Aviation Directive. [http://ww.govtrack.us/congress/bills/112/s1956/text].

The Bill vests with the Secrertary of Transport the authority to prohibit U.S. civil aircraft carriers from participating in the EU-ETS scheme. In making the decision, the Secretary must determine whether imposing such a prohbition is in the public interest, taking into account various important factors, including the impact on U.S. consumers, carriers, and operators; U.S. interest in economic, energy, and environmental security; and U.S foreign relations and international commitments. [Section 2].

The Thune Bill also requires the Secretary of Transporation and other government officials "to take other actions under existing authorities that are in the pulic interest necessary to hold operators of civil aircraft of the United States harmless from the emissions trading scheme..." [emphasis added] [Section 3(2)].

While the objective of the Thune Bill, to prevent unilateral action by the European Union on an issue requiring multilateral cooperation, is understandable, the language of the Bill and the approach of the Senate could potentially put U.S. taxpayers at risk, even those who do not avail of the airline services, unless the scope of the hold harmless provision is clarified.

In most contracts and law, a "hold harmless" clause guarantees or indemnifies a particular person or group. It is unlcear from the language of the Bill whether this is the intended purpose of the hold harmless clause. It is equally unclear that the purpose of the clause is not to indemnify civil aircraft carriers.

If the hold harmless clause operates to indemnify airline, it could work as follows: under the EU Directive, airlines that do not comply with it will be fined at a rate of about $125 for each metric ton of emissions produced by the airlines. The EU countries enforcing the Directive also have the authority to ban flights of non-complying airlines from entering airports in the EU territory. If an EU nation takes either step, the airlines could seek indemnity from the Secretary or other appropriate administrative agencies, who would be legally bound to provide reimbursement if the hold harmless clause is in operation.

Whether an airline can claim indemnity depends on the interpretation that could be given to the various conditions in the hold harmless provision. Specifically, the Bill requires the Secretary of Transportation to take measures "in the public interest" to hold the airlines harmless. If the provision is interpreted naroowly to mean the interest of passengers, then the Secretary must according to law reimburse the airlines. If, on the other hand, the public interest is construed more broadly to include the general public, then airlines may not receive reimbursement. Given the general functions of the agencies identified, however, it is likely that they will construe public interest narrowly and value the public interest in preserving lower and competitive airfares, rather than broader tax implications. In such an event, the requirement that agencies take into account public interest could well lead to a situation where American tax payers bear the burden of indemnifying airlines. It is equally unlikely that the U.S. government would leave airlines in a legal dilemma, where both compliance and non-compliance with the Directive would cost them.

Thus, while the Thune Bill mirrors the action taken by other governments such as China and India, the legal solution that it offers must be applied in a manner that ensures that American taxpayers do not face undue economic burden. International negotiations and remedies may be a better way to resolve the problem. Alternatively, the Bill before it is finally adopted, should clarify the scope of the hold harmless provision and the public interest language, or ensure that taxpayers do not bear the brunt of a problem faced by civil aircraft carriers.

--Deepa--

In Case You Missed It - Week of September 16th-22nd

* Less than 10% of Caribbean coral reefs are showing live coral cover – on the verge of collapse.

* Natural gas fracking controversies heat up around the globe: see here, here, and here.

* A new report in the New England Journal of Medicine finds that doctors are less likely to trust research studies funded by industry.

* Entergy CEO maintains informed views on climate change, but will be retiring soon.

* Conservationists and farmers come together to push Congress to pass Farm Bill.

* Amazon deforestation jumped 220% in August (relative to last August's rate).

ABA SEER Fall Meeting -- Austin, Texas

Each year, the ABA's Section of Environment, Energy, and Resources holds an annual Fall Meeting that provides some of the highest quality programming available on emerging issues in environmental law.  It's also a fantastic opportunity to network with colleagues and other experts in the field.

This year, the 20th Annual Fall Meeting, looks to prove no different.  The meeting will be held in Austin, Texas from October 10-13.  It is set to feature a number of fascinating panels (a number of which should be particularly interesting if, like me, you love all things energy).  A few highlights include:

• Keystone XL Pipe Dreams: Game On or Game Over?


• Environmental Law Before the Supreme Court


• Greenhouse Gas Update: EPA Rule Challenges, Cap and Trade, LCFS, Common Law Litigation, and Public Trust


• Energy, Environment, and Politics in 2012: Expectations and Prognostications for the Next Four Years


• Social Media and Environmental, Energy, and Resource Lawyers


• Environmental Impacts of Oil and Gas Production in Shale Formations: Policy, Perception, and Reality


• Waiting for the Next Big Bang: ERCOT as the U.S. Grid in Microcosm

On top of this, the meeting coincides with the Austin City Limits Music Festival, so you can add some phat grooves to your environmental law diet (e.g., Florence + the Machine, Alabama Shakes, Red Hot Chili Peppers, The Black Keys, The Shins, Weezer, The Boxer Rebellion, Gotye, and more).

The meeting brochure is available on the ABA SEER website.  Registration is available here.

-Lincoln Davies

Income Inequality and Trees

On this morning’s edition of National Public Radio’s “Marketplace,” Jeff Horwich interviewed Tim DeChant on the correlation between income equality and trees.  The spot coincided with the release of aggregate data by the Census Bureau indicating that income equality is on the rise in twenty states. 

DeChant, the host of the blog persquaremile.com, recently reported on a 2008 study conducted by forestry scholar Yaoqi Zhang (Auburn) and planning scholar Pengyu Wu (Boise State).  Assessing data from 210 urban areas, the study found a strong correlation between income inequality and tree cover.  Motivated by the study, DeChant turned to GoogleEarth to see just how evident the tree cover disparity might be, and posted a host of comparative photos here.  Describing his reaction when he first glimpsed the aerial images below, DeChant explained in today’s NPR interview that West Oakland looked like “a concrete jungle,” while neighboring Piedmont looked “like a real jungle.”

West Oakland

Piedmont

As he explained to Horwich, DeChant attributes the comparative lack of trees in lower-income areas to wealthy individuals and cities having the economic resources and real property to plant and maintain more trees.  He suggests that this reality is disconcerting in light of trees’ direct economic impacts (e.g., trees increase property values, ease cooling costs, alleviate air pollution, reduce stress, etc.). 

Today's NPR interview obviously did not---and could not have in the brief time allotted---address all of the many pressing issues associated with urban forestry.  For instance, it did not raise the point that, beyond the noted economic impacts, trees can have significant “existence value;” that is, people might feel a lost sense of well-being by virtue of the fact that natural features of the land are depleted in areas outside their own daily surroundings.  In addition, it did not highlight the important distinction between wild and human-planted trees.  And perhaps most significantly, as an empirical matter the 2007 study that served as the initial trigger for DeChant's blog posts did not seem to offer any causal link between tree cover and income inequality, though the interview could have been interpreted to suggest that it did.  Still, the story calls attention to the advantages and challenges of incorporating green space into local planning and development models.

-Tim Mulvaney

Federalism in Fracking: Updates on the Regulatory Experiment

Legal scholars have finally begun to take on the pressing federalism questions raised by the expansion of shale gas development, including hydraulic fracturing -- also described as fracing, fracking, hydrofracking, or whatever else you'd like to call it. (I usually refer to the whole process as tight sands and shale gas development, since it appears that many of the risks arise not from the process of fracking itself but from other stages, such as disposal of drilling and fracturing wastes.  But fracking is so much easier--and perhaps more fun--to say.)

In a thorough and interesting article forthcoming in the University of Pennsylvania Law Review, Professor David Spence explores fracking federalism issues through traditional justifications for federal regulation, such as externalities that cross state boundaries, races to the bottom, and national interest in the issue.  He concludes that federal regulation should be limited to the areas in which fracking has interstate effects or involves national interests, such as greenhouse gas emissions and disposal of fracking wastewaters through treatment plants into rivers.  Professor Spence believes that many of the effects are local, suggesting that the areas for proper federal involvement are somewhat narrow.  In a New York Times op-ed, Professor Jody Freeman proposes a more comprehensive, cooperative federalist regime involving a floor of federal requirements. 

I'm glad that the scholarly conversation about the best level(s) of governance for shale gas development has begun in earnest, and I hope that it will expand.  In the meantime, the grand regulatory experiment continues to play out at the state, local, and sublocal levels, while the EPA continues to study fracking and occasionally get involved.  It wouldn't be fair to suggest that this is an organized experiment--indeed, these efforts might best be described as hasty and sometimes haphazard responses to a rapidly expanding practice.  States do engage in some comparison of their regulations through the Interstate Oil and Gas Compact Commission.  But the IOGCC sometimes appears to focus more on building a high fortress around state authority, and I worry that this distracts from its efforts to encourage states to compare and improve their oil and gas regulations.  In addition to the first link on its Hydraulic Fracturing page--"States' Rights"--the IOGCC's page includes links such as "States Challenge Attempted Federal Power Grab in Hydraulic Fracturing Issue," and a full-paragraph reference to a much-criticized 2004 EPA report that concluded that fracking for coalbed methane posed few risks and that further study was unnecessary. (The EPA has since commenced a new study of fracking in shales.) 

The State Review of Oil & Natural Gas Environmental Regulations (STRONGER) also inspires some important state coordination.  STRONGER, formed by the EPA and the IOGCC in 1988, emerged after the EPA decided to not regulate oil and gas exploration and production wastes under Subtitle C of the Resource Conservation and Recovery Act.  The organization suggests waste management guidelines  that states should follow and conducts voluntary reviews of state oil and gas regulatory programs, including hydraulic fracturing regulation. 

STRONGER and the Ground Water Protection Council--a nonprofit association of state regulators--also have worked together to form the Risk Based Data Management System, which tracks some "oil, gas, injection well, and source water protection activities."  That system provides a link to FracFocus, which discloses chemicals used at certain hydraulically fractured wells.  Like the IOGCC, however, the GWPC focuses some of its efforts on supporting state-level authority over hydraulic fracturing.  In 2000, it issued a resolution supporting a congressional clarification to exclude hydraulic fracturing from the definition of underground injection under the Safe Drinking Water Act.  Congress granted the GWPC's wish in the Energy Policy Act of 2005.

As states coordinate (a bit) and in some cases resist federal regulation, they have begun to make regulatory changes of their own.  In December 2011, West Virginia passed a relatively comprehensive revision of its oil and gas laws to address shale gas development risks.  Pennsylvania, which has updated its shale gas regulations several times, most recently passed Act 13 (HB 1950) in February 2012.  This Act strengthens many state environmental regulations for fractured (unconventional) wells, but it also raises new federalism issues by expanding state preemption of local control.  In addition to reaffirming the state's existing, general preemption of local oil and gas regulation, the Act provides that any local ordinance regulating oil and gas activity must "authorize oil and gas operations, other than activities at impoundment areas, compressor stations and processing plants, as a permitted use in all zoning districts," with exceptions for residential areas.  It also requires municipalities to "authorize natural gas compressor stations as a permitted use in agricultural and industrial zoning districts and as a conditional use in all other zoning districts" if the compressor stations meet certain standards.

Some concessions to municipalities accompany this broad preemption of municipal regulation in Pennsylvania.  Act 13 allows them to charge an unconventional gas well fee and strengthens certain state-level environmental protections, for example.  Several municipalities objected to this expansion of state authority, though, and they sued the state.  In July, the Pennsylvania Commonwealth Court in Robinson Township v. Pennsylvania (2012 WL 3030277) struck down many of the preemption provisions, including those requiring that states authorize oil and gas operations in most zones and compressor stations in industrial and agricultural zones. Specifically, the court found that these provisions violated substantive due process by forcing municipalities to "to violate their comprehensive plans for growth and development." Governor Corbett has appealed to the state supreme court. Despite the ruling of the commonwealth court, the state's public utility commission is continuing to review local ordinances to determine whether they comply with Act 13.  

As Pennsylvania attempts to preempt local action, courts in New York have allowed the towns of Dryden and Middlefield to ban oil and gas development and fracturing through their zoning ordinance, despite general state language superseding local laws relating to the regulation of oil and gas. At the sublocal level, a New York court allowed a property owners' association to prohibit gas development by enforcing a restrictive covenant that banned "commercial uses" in the community.  See Weiden Lake Property Owners Association v. Klansky, 32 Misc.3d 1234(A), Sullivan County, NY, 2011.  Colorado is seeking a middle ground; its Regulatory Task Force on Cooperative Strategies Regarding State and Local Regulation of Oil and Gas Development issued recommendations in April.

As scholars exchange ideas, states, municipalities, and private governments will continue to spar over the proper location and content of regulatory authority.  Hopefully the experiment will lead to something better; there's progress, but much room for improvement remains. 

-Hannah Wiseman

What India Thinks about Climate Change

I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”

We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”

I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.

Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:

Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.

(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)

But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.

Here’s another excerpt from the report’s “Highlights”:

• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.

• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.

• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.

• 70 percent favored a national program to teach Indians about global warming.

This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)

But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.

Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at Loyola University New Orleans

 

"We Despise Entitlements and Taxes!...Er...Unless They Support Our Business" - Musings on the Opposition to the New Forest Service Planning Rule

Recently I commented on timber, ranching, and off-road recreation groups' recent challenge (which you can read here) to the Forest Service's new planning rule (which you can read here). Ultimately the debate is about whether the new planning rule can require stronger consideration of ecosystem services, habitat protection, and other environmental objectives during the planning process for operations on federal forest lands. I thought I would provide a bit further explanation of my thoughts here.

As Jim Salzman, James Rasband, and Mark Squillace so eloquently point out in their natural resources law book on the subject, the history of the Forest Service’s primary focus on consumptive use of forest products is deep. Gifford Pinchot, the first head of the Forest Service, actually opposed the creation of national parks because he believed that forests should not be considered recreation or ecological preserves. Yet as long ago as 1960 the Multiple Use and Sustained Yield Act expanded the purposes of national forest management beyond timber extraction to include, at least on paper, "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." All of these uses were to be treated co-equal and managed on balance with the other uses, even though as a practical matter this mandate did not really change the long-standing focus on extraction. In addition, the National Forest Management Act itself gives the Forest Service a great deal of discretion in the planning process, requiring it to use an interdisciplinary approach and to integrate understandings of physical, biological, and economic sciences in order to “insure consideration of the economic and environmental aspects of various systems of renewable resource management,” and to “provide for diversity of plant and animal communities based upon the suitability and capability of the specific land area in order to meet overall multiple use objectives.” The agency was further directed by Congress to appoint a committee of scientists to provide advice on how to achieve these management objectives, which it clearly did in crafting the current rule.

In this way, the new planning rule does not seem extraordinary. In fact, since the 1960’s the Forest Service has continually had to answer to challenges that it was not following statutory multiple use requirements because it continued to elevate extraction over other uses - in other words, the Forest Service has had to consistently answer to challenges that it has consistently not done what it now seeks to do. So if anything the court challenge may be construed as challenging the shift from traditional practice notwithstanding statutory mandates, rather than a valid challenge to the text of the statutes at issue.

This gives rise to a solid argument that the new rule actually corrects an imbalance in the past, whereby “multiple use” language that should have been aimed at protection of ecosystem services, habitat protection, etc. was basically ignored, and these values were excluded from the planning process. These services are critical not only to the ecological health of a forest, but the long-term economic well-being of both the timber industry as well as the public with access to and living adjacent to national forests. As I have blogged about previously, these services are worth a great deal from both an ecological and economic perspective, and include watershed protection (protecting both the quantity and quality of water available), soil stabilization and erosion control, air quality (such as reducing particulate matter and other pollutants), climate regulation and carbon sequestration, biological diversity, recreation and tourism, and even non-timber commercial products, such as medicines or food (such as salmon in the Pacific Northwest), only to name a few services.

Beyond the law and policy aspects of the rule and its challenge, I cannot help but consider the curious position of some sectors, traditionally associated with vocal opposition to increased taxes and "government handouts" or entitlements, who seem to embrace so readily the misuse of tax dollars and the receipt of their own entitlements. These forests are everyone's forests - we all pay taxes to maintain our national forests. Those with economic interests in and directly adjacent to national forests seem to ignore that fact when they assert a monopoly on the goods and services provided by national forests. Perhaps I and other citizens would like habitat protection to be part of the planning process because I would like for that habitat or wildlife to exist the next time I go visit a national forest for which I am paying.

Similarly, it is fascinating to watch these groups so stringently assert rights to entitlements to which they have become accustomed, and apparently dependent upon as a form of corporate welfare. Their economic operations and recreational pursuits are dependent upon lands and resources provided by the government, and are directly subsidized by citizens' taxes. At the first sign of those entitlements being taken away, these groups cry foul, much like those European citizens in opposition to the austerity measures taken by governments whose political philosophy would likely not match up with large blocks of those currently opposing the rule.

Regardless of my interest in these political aspects of the situation, ultimately I think there are good arguments that the new planning rule, while potentially seen as a dramatic shift from traditional practice and the institutional inertia of the Forest Service, is not a dramatic shift from the text of forest management statutes – and indeed seems to be shifting more closely to the requirements contemplated by the text of those statutes.

- Blake Hudson 

Call for Papers: Central States Law School Association Conference

Annual Scholarship Conference

October 19-20

Cleveland-Marshall College of Law

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

            The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at [email protected] by September 22, 2012.  Any late submissions will be considered on a space available basis only.

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at [email protected].

            In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at [email protected].

     For more information about CSLSA, visit our website at http://cslsa.us/.

--Deepa--

In Case You Missed It -- Week of September 9

- InsideEPA reported that EPA issued a compliance order permitting Shell Oil Company to do exploratory drilling in the arctic, even though it is expected to violate its Clean Air Act permit

- A proposal to authorize OIRA review of independent agencies has stalled for now

- Japan announced a policy to end its reliance on nuclear power by the 30s

- check here for the presidential candidates' responses to questions about science

Keeping the Independent Agencies Independent

Many environmental law profs have commented on the drawbacks of cost-benefit analysis, particularly as applied by OIRA when it reviews major rulemakings.  But what if OIRA's reach were extended even further, to independent agencies? The following is a cross-post with CPRBlog: Keeping the Independent Agencies Independent.

The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for thoughtful attention to the reasons for independence in the first place.

The fundamental difference between executive and independent agencies lies in the degree to which each is insulated from presidential control.  For example, executive agencies are typically headed by individuals who serve at the will of the President—but independent agencies are governed by multi-member commissions who are removable only for cause.  While executive heads are usually members of the President’s party and serve for indefinite terms, independent commissioners in most cases must come from both parties and have fixed terms that extend beyond a single administration. 

It is worth emphasizing that the choice whether to create an executive or independent agency lies with Congress.  By choosing an independent form, Congress puts in place a structure meant to insulate those agencies—at least somewhat—from political pressures.  How do independent agencies achieve this goal? There are many ways, but here I’ll mention those most salient to S. 3468.  First, by being shielded from the threat of removal, independent commissioners can make policies that might conflict with those of the White House but that are more consistent with those of Congress.  Second, independent agencies are meant to be experts in their regulatory field.  They typically have a narrower scope of responsibility than do executive agencies and can thereby focus their attention on developing specialized knowledge about their regulated industries.  Certainly, expertise does not provide a foolproof shield against politics—a point I and others have frequently made—but the possibility of providing at least some insulation is a goal well worth pursuing.

In addition, the multi-member structure of many independent agencies serves deliberative values; decisions are less likely to amplify short-term political views when groups comprised of different viewpoints must make ultimate decisions.  The bipartisan, multi-member mix also promotes long-term stability and helps insulate these agencies—again, at least more than executive agencies—from interest-group capture.

Even though independent agencies don’t function as perfectly as we might like, putting their rulemakings through OIRA review would undercut the ultimate goal of shielding them from politics.  As the President himself has acknowledged, OIRA review is the key means by which the President directs regulatory policy.  For Congress to suggest this type of review for agencies that Congress itself meant to protect from presidential policy is both illogical and short-sighted.

Independent agencies are not lacking for checks on their exercises of discretion.  Their mandates are frequently extraordinarily precise, both substantively and procedurally.  Further, independent agencies are subject to the requirements of the Administrative Procedure Act, and courts make no distinctions between agency types when reviewing exercises of expert discretion.  One of the only procedural distinctions between types of agencies, therefore, is that independent agencies do not undergo OIRA review.  To remove that distinction—a last bulwark against politics—would be to lose an important source of experimentation, comparison, and diversity in the regulatory process.

-Emily Meazell

 

China Environmental Experiences #6: Environmental Philosophy and Human Relationships with Nature

       This is the sixth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.  This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world. 

      
     In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy.  With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series.  At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).

       These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating.  Every culture has elements that are puzzling, even troubling to those outside it.  (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!)  Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject. 

       Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
      
       But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.  They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions.  This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law. 

       The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with grandmothers.  So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself.  We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment.  But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices? 
      
       From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons.  We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations. 
      
       We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs.  Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies.  Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate. 

       Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances.  They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness.  But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world. 

       This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification.  Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone.  We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964).  Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles. 
      
       To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system.  They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks.  But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation.  After all, there are roads all over the world!  But there is only one Grand Canyon.

 
      Most modern Chinese see the human relationship with nature very differently, and from the bottom up.  Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role.  There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true.  But today, in both government policy and popular consciousness, the balance appears reversed.  By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature.  Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state.  The Chinese, perhaps, have been on an opposite trajectory.
      
       Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty.  After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means.  In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales.  In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs.  To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded.  For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean.  But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
      
       Again, part of the reason for this doubtlessly comes from the pressure of managing such an immense population on such a comparatively small chunk of land.  After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States.  The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people.  The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population.  This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space.  Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity. 
      
       Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population.  And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness.  But by and large, most Chinese people don’t.  Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it.  Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy. 

       Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival.  New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel.  Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together.  But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness.  It was just, in some regards, a different kind of peace.

       Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world.  But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic.  They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons.  The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.”  In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural environments.  As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert.  The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.

       Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China.  More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China.  Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation.  Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.

       Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness.  You can see it in the stunningly beautiful Chinese gardens of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi.  These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art.  Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers.  Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens.  But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.

       In fact, the Chinese preference for heavily mediated nature extends even to their own national parks.  Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon.  I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest China.  I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit.  They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi. 

       Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake.  But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside.  It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see.  (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.) 
      
       At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps.  That is, except for the crackling speakers—poorly camouflaged as tree stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience.  And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music.  As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson.  “Bad,” I believe.  Followed by Abba.  (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)

       To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly.  There is no trail around the lake, she insisted, and she’d been giving tours here for five years.  I would later confirm that the trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it.  It’s just not part of what they want from their encounters with wilderness.  Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."  

       Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape.  But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country.  Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind.  My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest.  We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails.  But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
      
       Learning from that mistake, I later used the Internet to research a spectacular trail alongside a
majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet.  Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it.  I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists used it.  They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas.  As long as I live, I will never forget that hike.  But as far as I can tell, most visiting Chinese will never take it.
      
       I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.”  Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate.  The closest Chinese word would be “pa-shan,” which means to climb a mountain.  But in China, most mountains are climbed on paved trails and stone staircases.  In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit.  When I first arrived in Qingdao, I was delighted to discover that the small mountain behind my neighborhood didn’t have one.  But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops.  This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.

       As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness.  I long for earthen trails, and not for piped-in music.  Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation.  Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail.  And they often lead to spectacular temples and contemplative pagodas nestled among the hills, a classical and undeniably beautiful feature of traditional Chinese culture.  Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it.  For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...

[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]

--Erin Ryan

 

Call for Papers on Next Generation Compliance

A couple years ago, through my research on the EU Emissions Trading Scheme and the California greenhouse gas cap-and-trade program, I became interested in the way that EU and California verify the emissions data they receive from emitters.  Both programs require emitters to contract with private governmentally-approved third parties to review their emissions report and submit  a determination to the government as to whether it is accurate and otherwise in conformity with the law.  Given everything I already knew about incomplete compliance data and weakness of enforcement under many environmental regulatory statutes, I found this innovation very interesting, and I published an article about it:  Regulation by Third-Party Verification, 53 B.C. L. Rev. 1 (2012).

It seems like the US EPA is also interested.  It recently sent around a Call for Papers on Next Generation Compliance (see below).  Paper proposals are due by September 24, 2012 for a “Workshop for Researchers and Practitioners” on December 11-12, 2012 in Washington D.C.  Other workshop sponsors include Environmental Law Institute, George Washington Law, Berkeley Law, and Berkeley’s Goldman School of Public Policy.

- Lesley McAllister

------

Dear Colleague:

We invite you to consider participating in a workshop on “Next Generation Environmental Compliance.” The workshop will explore ways regulations can be designed and implemented to achieve high compliance without relying on extensive government site inspection and enforcement actions. Academics and practitioners will discuss the latest research, theory, evaluation, policy, and best practices for creating effective regulations that result in high compliance.

We are inviting experts to submit abstracts of papers or outlines of workshop presentations for consideration that they would present at the workshop by no later than September 24, 2012. Submissions may be based on recently completed research or papers, or new ideas for research that could advance Next Generation Environmental Compliance.

Participants selected to present at the workshop may receive a speaker fee. We also expect to publish the papers and insights from the workshop. Complete details are provided in the attached “call for papers.”

We hope that you will consider sending an abstract or other material to be considered for this important workshop.

Download Next Generation Compliance Call for Papers

Thank you. We look forward to hearing from you.

Sincerely,
The co-sponsors of the Next Generation Environmental Compliance Workshop:
• The George Washington University, School of Law
• University of California, Berkeley Law, Center for Law, Energy & the Environment
• University of California, Berkeley, Goldman School of Public Policy, Center for Environmental Public Policy
• The Environmental Law Institute
• US Environmental Protection Agency, Office of Enforcement and Compliance Assurance

Catherine Tunis
US Environmental Protection Agency
Office of Enforcement and Compliance Assurance
202-564-0476
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Jal Satyagraha: Surely there should be other legal means...

Jal Satyagraha can be translated as seeking truth on water. This is what villagers in Ghogalgaon village in the state of Madhya Pradesh did...they stayed in water for 17 days to seek compensation from the state government, whose decision to raise the water level in the Omkareshwar Dam threatened to flood their lands. Following the protests, the government announced that it would reduce the levels of water released, provide compensation, and rehabilitate villagers. Similar protests however are continuing in other villages, where the government reportedly is releasing water at levels above that approved by the Supreme Court of India. These protests represent continuing efforts by the Narmada Bachao Andolan to ensure that victims of dam projects receive fair compensation as directed by the Supreme Court. A report of the Jal Satyagraha can be found here.

However, the fact that it takes 17 days of protest by villagers standing in water signals a failure in the legal process. Despite extensive Supreme Court intervention, the procedure for at least ensuring that villagers will be compensated is apparently not in place. Perhaps, a more structure legislation would be a better approach to ensure that villagers are provided their fair compensation, not only for the lost land, but also for lost economic opportunities.

--Deepa--

Sometimes "compliance" just ain't enough...process matters

This week residents living near the contentious nuclear power plant in Kudankulam, India, organized another protest. This time the protestors opposed clearance given to initial fuel loading as another step towards operationalizing the plant.

Here is the problem: the Department of Atomic Energy (DAE) has published its findings regarding the safety of the plants, which the Madras High Court decided was adequate when it dismissed a petition filed by those opposed to the nuclear power plant. Further, the protestors were not given the permission to organize any more protests.

Yet, several villagers --reported to be between 1000 and 5000 in number--decided to organize a protest around the power plant. The police reportedly released tear gas to disperse the protestors, and at least one protestor was fatally shot.

What is the way forward?

The safety plan released by the DAE may well be sound, even though it is not clear for how long the spent fuel will be stored at the Kudankulam site or where it will be reprocessed. The Madras High Court's decision should perhaps deserve respect as the highest state court. The problem, however, is that sometimes formal compliance may not be sufficient.

At present, government officials continue to blame foreign NGOs for the protests. This, however, is fruitless. It does not solve the problem, that is, can those who have the most stake in the safety of the plant be convinced of its safety. What the Indian government needs to do now is restore faith in the safety process . After all, for residents much more is at stake than energy security or formal complaince with the laws. By persuading residents about the reliability of the safety plans, the Indian government can increase the legitimacy of its laws.

One way to achieve this is to engage in an extensive public hearing process. Further, the government should publish its findings, public comments, and provide its response to the public comments before finalizing the report. A process that engages stakeholders is critical and the money and time spent on such a transparent process may ultimately pay off.

--DB--

The Intersection of Ad Law, Natural Resources, and More: Federal Oil & Gas Leases

Federal oil and gas deposits were back in the news this week when the Tenth Circuit effectively upheld the Interior Department's decision to withdraw 77 controversial leases from auction.

The dispute traces back to the waning days of the Bush-43 administration, which put a large block of leases up for auction as it was heading out of office.  Some of these were proximate to valued scenic and recreation areas, including Arches National Park and Dinosaur National Monument, and so environmentalists protested.  Contesting possible climate change impacts, the auction process itself also became a lightning rod when Tim DeChristopher submitted false bids in a civil disobedience effort to monkeywrench the sales.  Then, when Ken Salazar became Secretary of the Interior, he withdrew 77 of the leases from auction.  This he announced in a February 4, 2009 press conference, followed by an internal memorandum making the decision official two days later.  Numerous leaseholders and various counties then challenged Salazar's decision in federal court.

In a notable administrative law decision this Wednesday, Impact Energy Resources v. Salazar, the Tenth Circuit ruled that the district court had properly dismissed the lawsuit challenging Interior's decision as time barred.  Plaintiffs had sued 90 days after notice of the lease withdrawal was mailed to them on February 12, 2009, not within 90 days from when Salazar directed the withdrawal via his February 6, 2009 memorandum.  Because actions under the Mineral Leasing Act are subject to a 90-day statute of limitations, the panel, 2-1, found that the lawsuit was too late.

On this score, there were two interesting currents running through the decision.  First, the majority split over how a "final" decision under the Mineral Leasing Act interfaces with a "final agency action" under the APA.  Judge Lucero contended that once a final decision was made by the Secretary under the MLA, the question of whether the agency itself had made a final decision for APA purposes became immaterial:  "The MLA unambiguously starts the limitations clock when the Secretary makes a final decision, not when the BLM engages in final agency action."  By contrast, Judge Seymour would have ruled that a Secretary Salazar's final decision under the MLA was also a final agency action under the Administrative Procedure Act.  "[I]t seems clear to me," she wrote, "that when the Secretary makes a final decision for MLA purposes he is also taking 'final agency action' pursuant to the APA." 

Second, the majority found that there was no equitable tolling argument based on the delay between Salazar's issuance of the internal memorandum withdrawing the leases and the BLM's providing notification of that decision to the lessees.  "Although the Energy Companies had time to prepare their claims before the limitations period expired, they gambled that a court would accept their proffered limitations theory.  Equitable tolling is not required under these circumstances."

Although one could claim that this decision is limited to the narrow area of mineral leasing on federal lands, it could make much larger waves going forward.  At the least, it provides precedent that Interior can rely on to make internal decisions about mineral leases and then control the clock for how quickly parties might challenge those decisions.  As Judge Tymkovich wrote in dissent, "The [majority's] opinion allows the Secretary of the Interior to make a non-public final decision and start the clock on judicial review of that decision, even if the Department tells no one about it."  Whether one is pro- or anti-federal leasing, the lack of transparency that such a regime could allow for seems problematic.  Indeed, even if this ruling remains limited to federal mineral leases, it could have wide impacts given how much of the American West is dominated by federal land.

Perhaps more broadly, the decision could be relied on to give agencies more control over whether they might be sued in other statutory regimes that, like the Mineral Leasing Act, start the statute of limitations clock from when a decision is made rather than when the action accrues.  In this way, the Tenth Circuit's decision also shows how central to environmental, natural resources, and energy issues administrative law continues to be.  I often tell students that every modern law student should take administrative law.  The Tenth Circuit's ruling is yet one more arrow in that quiver. 

Finally, and most reaching of all, the Tenth Circuit's decision highlights what long has been, and in all likelihood will continue to be, a prime battleground for environmental disputes in the West -- control over federal lands, how those lands are utilized, and what role they play in combatting or enabling climate change.  Is this why the proposed Romney-Ryan energy plan reads as much like a polemic on states rights as a substantive clarification of their preferred energy policy?  Much more could be said about why it is tragic that candidates think they must make energy policy partisan, when it is one of the most important places we can find win-win-win solutions that both create jobs and protect the environment we all rely on to live.  For now, though, it is enough to note that the Tenth Circuit's decision is one more way that federal oil and gas leasing could be a key area for debate leading up to this November.

-Lincoln Davies

Faculty Searches in Environmental Law & Next Week's Aspiring Law Professors Conference

Dan Farber has posted a preliminary list of faculty searches in environmental law and related areas on Legal Planet, and hiring chairs have identified select other environmental searches on PrawfsBlawg.  I look forward to the prospect of meeting future environmental law professors next week at Arizona State University, as I again will have the distinct pleasure of serving as a panelist at the annual Aspiring Law Professors Conference at the Sandra Day O’Connor College of Law.

In its fourth year, the Aspiring Law Professors Conference is “designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.”  The program includes a keynote address by the esteemed Paul Horwitz, Gordon Rosen Professor of Law at the University of Alabama School of Law, as well as break-out panels addressing the nuances of the appointments process and opportunities to participate in a mock interview and/or present a mock job talk. 

-Tim Mulvaney 

Hurricane Isaac, Oil in the Gulf, and Election Year Energy Debates

My parents live in New Orleans (and my brother was originally supposed to get married there the weekend after Katrina), so I was particularly focused on Hurricane Isaac bearing down on New Orleans last week on the Katrina's 7th anniversary.  I was both relieved that it was much less catastrophic and concerned about the many impacts it brought.  One of those impacts highlights the interconnection between our choices around fossil fuels and the complexities of disaster preparedness as our climate changes. 

As was widely reported, one of Hurricane Isaac's most significant environmental impacts was the reappearance of oil leftover from the BP Deepwater Horizon spill.  While as BP points out, it is hard to know exactly how much of the oil is from the spill rather than other sources, some of it likely is.  That oil serves as a potent reminder of the long-term human and ecological risks we face when we fail to manage the risks of unconvention fuel extraction adequately. 

That reemergence of oil also illuminates the importance of focusing on climate change adaptation even as we mitigate to limit its impacts.  While it is difficult to link particular severe storms to climate change, our risks of such events increase with climate change.  Hurricane Isaac highlights that we need to be ready at our coastlines for these storms and what they may unearth--the good news, despite the losses experienced by many in this hurricane, is that New Orleans learned from its Katrina experience and was much better prepared than seven years ago.  We need to keep learning and preparing (there are already commentaries on what New Orleans still needs to work on based on the Hurricane Isaac experience), and also try to make proactive decisions to limit risks.

The hurricane and the reappearance of oil take place against the backdrop of our four year ritual of partisan political conventions, made all the more dramatic by the Republican Party's choice to put its convention in Tampa during hurricane season, which resulted in disruptions from a storm looming on Katrina's anniversary.  What makes me sad about our national energy debate (and debates on many other issues) is that there is so much that both parties should agree upon, and so little interconnection of individual hot button issues and federalism debates into the energy system as a whole, something that's been a focus of mine lately in a new project with Hannah Wiseman.  Most pressing energy challenges--from managing the risks of deepwater drilling or hydraulic fracturing to updating our aging electricity grid and adding needed transmission lines--require us to think in innovative ways about how our fragmented, multi-level regulatory structures could be more effective in getting the job done.  I hope, even if it's in quiet ways outside of the public attention directed to election year disagreements, we can find our shared values and make space for complicated, holistic, out-of the box thinking. 

Hari Osofsky