Wednesday, October 31, 2012

Obama on Clean Energy: Actions Speak

Unlike climate change, clean energy policy has received a fair bit of attention in the presidential campaign.  Obama made clear that he supports renewable energy as part of his "all of the above" approach, while Romney would end an important federal subsidy for wind power and otherwise increase reliance on coal, oil and gas.  But for those who are disappointed that Obama didn’t say more about our need to transition away from fossil fuel and towards renewables, remember the old adages “actions speak louder than words” and “put your money where your mouth is.”  Here are some facts about Obama’s actions and expenditures:

First, we must recall that subsidies for fossil fuels have been a fixture in US energy policy.  As discussed in a recent report by venture capital firm DBL Investors, these subsidies have come in many forms including direct payments and preferential loans; favorable tax treatment; and government investment in R&D and infrastructure. Coal mining companies have enjoyed generous tax treatment since the early 1930s, and the government’s investment in geological surveys and railroads also greatly facilitated coal-fired electricity.  Natural gas combustion technology benefited from billions of dollars worth of jet engine technology research funded by the Department of Defense research.  The report finds that, in total, the oil and gas industries received about $350 billion in subsidies between 1918 and 2009.

But that’s not all. Fossil fuel companies enjoy an incredibly huge subsidy because we don’t pay the full social and environmental costs of fossil fuels.   Both conventional fossil fuel pollution and carbon pollution impose significant costs on society.  For example, a National Research Council study, The Hidden Costs of Energy, calculated aggregate health and environmental damages associated with conventional air pollution emissions from coal-fired power plants in 2005 at approximately $62 billion.  The health and environmental damage caused by carbon pollution is referred to as the “social cost of carbon.” EPA’s estimated the social cost of carbon at $21 per ton, but a recent study suggests that the real cost is between $55 and $266 per ton.  If the latter estimate is correct, US power plants received a subsidy of between $133 and $644 billion in 2010 based on their 2.4 billion tons of carbon emissions.

So what happened with energy subsidies during Obama’s administration?  Importantly, Obama has repeatedly proposed reducing or eliminating subsidies for fossil fuels.  Also, under Obama, renewable energy started receiving significant federal subsidies.  The American Recovery and Reinvestment Act of 2009 committed $21 billion to renewable energy. As a result, the US Energy Information Administration reported that in fiscal year 2010, renewables received 55% of the federal electricity production subsidy pie ($6.6 billion) while fossil fuels received 15% ($1.8 billion). Of course, it bears reminding that (1) this money only lasted a couple years, and (2) if you consider the environmental and social costs imposed by fossil fuels, then fossil fuels still won hands down.

In sum, Obama has taken action and dedicated significant resources to support renewable energy.  With another four years, there is a good chance that the country will continue to move forward in transitioning from fossil fuels to renewables.

- Lesley McAllister

October 31, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 30, 2012

In Case You Missed It - Week of October 21-27

1. The first U.S. Tar Sands project approved

The Utah Division of Water Quality ("the Division") issued U.S. Oil Sands Inc., a Calgary-based Canadian mining company approval to mine oil sands in Book Cliffs, Utah. However, the Division does not require the company to first obtain a permit for groundwater pollution monitoring or a pollution permit. The decision has been challenged by two environmental groups, Living Rivers and Western Resources Advocates, but has thus far been rejected by an Administrative Judge, who has rejected the claims by petitioners. A report on this issue is available here and the order of the judge is available here.

2. Germany's Problem of Excess Renewable Energy and NIMBY

Germany faces a unique problem--during high winds, its wind power generators generate so much energy that they cannot store that they send to their neighbors-the Czech Republic and Poland. However, the two nations are unable to deal with the overload and have decided to disconnect the grids to avoid power outage from surge overflows. This an entirely different problem, which points to the critical need for law and policy to promote renewable technology. A report is available here.


October 30, 2012 | Permalink | TrackBack (0)

A Climate-Ready City for India?

Surat 1

If you like sparkling diamonds and saffron saris, you will love Surat, India’s bustling, no-nonsense city, some 250 kilometers north of Mumbai, near the Arabian Sea. If you’re wearing a new diamond, there’s an 80% chance its was shaped by Surati hands (and laser beams too). And nearly every Indian has something in the closet from Surat—which is what you’d expect from a city whose clattering looms churn out 30 million meters of raw fabric a day.

But Surat, with a population of 4.5 million, faces big challenges too. Its proximity to the Tapti River delta—a strategic advantage in trade—also makes Surat a flood magnet. In the last 20 years, the city has been drowned by three major floods caused by emergency releases from an upstream dam. Lesser floods, caused by hard rains, occur more frequently, interrupting local business and displacing families living in flood plains. In 1994, a flood like that led to an outbreak of the plague. In addition, tidal surges moving up the mouth of the Tapti River threaten the city from the opposite direction. Even on calm days, high tides push salt water into parts of the river needed for drinking. All of these problems will be made considerably worse by climate change, whose effects include stronger downpours and rising seas.

For these reasons, Surat has developed a “City Resilience Strategy” focused on adapting to climatic change. The initiative is supported by the Asian Cities Climate Change Resilience Network (ACCCRN), an organization launched in 2008 and funded by the Rockefeller Foundation. ACCCRN supports adaptation work in ten cities, including three in India. (I’ll tell you about another, Gorakhpur, in a future post).

Because Surat is seen as a leader among ACCCRN projects, I was eager to see what the city was doing and how its work might be replicated. I spoke with city officials, business leaders, and public health experts. I perused the aeration basins of a water treatment plant, climbed the floodgates of a major river embankment, and threaded my way through a township built to replace a flood-prone slum. I even toured a state-of-the-art diamond-polishing facility because—well—when would I get to do that again?

In just a few years, Surat has accomplished quite a bit. With the help of outside experts, the city has assessed the climatic risks in flood management, energy, and public health. It has even mapped the social vulnerability of neighborhoods in terms of social cohesion, education, and class. The city is implementing a new early warning system for major floods and designing an inflatable dam to protect the river from saltwater intrusion.

Almost all of this work has been accomplished through a flexible and relatively loose network of public officials, business people, and community members organized around one compelling environmental goal. (I’ve written about the promise and pitfalls of such networks in the context of adaptation here.)

It’s impossible to know at this early stage how effective this experiment with “green governance” will be. Surat, one of the fastest growing cities in the world, suffers from a shortage of affordable housing, rampant sprawl in flood zones, and the complete absence of public transportation.

And I wonder how easily its resilience strategies can be duplicated elsewhere in the country. Before you get to green governance you need good governance, and that, in some quarters, is as elusive as a Bengal tiger. And note that Surat is a comparatively wealthy city. Its reliance on foreign trade and investment is one reason the business community has been such a strong supporter of expensive infrastructure.

Still, I admire the speed and efficiency with which Surat has marshaled its resources. And the commitment of city officials and other advocates I met can only be described as diamond-hard. 


 - Rob Verchick


October 30, 2012 | Permalink | TrackBack (0)

Sunday, October 28, 2012

Why Didn't We Try this Sooner?

This fall, for the first time, I'm teaching a legislation and administrative law course to 1Ls.  This isn't a new innovation--some schools have been doing this for years--but it is still a minority approach, and an approach with a mixed reputation.  One professor at another school, hearing of our experiment, recently said to me something along the lines of, "everyone who's tried that has regretted it, haven't they?"

Two months in, we have no regrets, and I'm starting to wonder why everyone doesn't do this.  There are several reasons why a 1L legislation/administration course makes a lot of sense.  First, the material provides a foundation for so many other law school courses.  The relationship to environmental law is obvious, but other subjects from immigration law to securities regulation to clinical practice all will make a lot more sense if students arrive with some background in statutory interpretation and administrative law.  Second, we're finding that there is a strong synergy between the legislation/administration course and an introductury constitutional law course.  Multiple students have commented on how learning statutory interpretation theories helps them understand theories of constitutional interpretation, and vice versa, and the separation of powers questions that form the core of most 1L con law courses are also centrally at issue in administrative law.

Of course, another reason the course is valuable is the importance of the material to modern legal practice, but on its own that's just a reason for students to cover this material at some point in their legal careers, not necessarily in the first year (though first-year coverage does ensure that they don't skip the course, which some students otherwise probably do). 

Two months is too soon to have a thoroughly informed judgment, of course.  The real test will play out over the next three years, as the students revisit (and hopefully remember) concepts learned in this course in a wide variety of other contexts.  But even at this early stage, I'd happily,if somewhat tentatively, recommend teaching administrative law to 1Ls.

-Dave Owen

October 28, 2012 | Permalink | Comments (2) | TrackBack (0)

Thursday, October 25, 2012

Shifting Seas: The Law's Response to Changing Ocean Conditions - November 14th and 15th at RWU

On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:  

This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea  boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities.  At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.

You can contact me if you have any questions. And I hope to see you in Bristol!

- Michael Burger

October 25, 2012 in Biodiversity, Climate Change, Current Affairs, Governance/Management, International, Land Use, Law, Water Resources | Permalink | TrackBack (0)

Wednesday, October 24, 2012

Conservation, Restoration, and Sustainability: A Call to Stewardship Conference @ BYU

We previously announced the upcoming Conservation, Restoration, and Sustainability: A Call to Stewardship conference at Brigham Young University, which is scheduled for November 8-10 in Provo, Utah.

The conference agenda is now available and promises to be very thought-provoking gathering.  The full agenda is available online, but here are some highlights:

  • A keynote address by J. Baird Callicott, University of North Texas

  • Panels on:
    • Environment of the American West
    • Sustainability in Business and Urban Planning
    • Energy, Religion, Ethics, and the Law
    • Cosmology and Sustainability
    • Post-structuralist Environmentalism
    • Mormon Environmental Ethics
    • Economics, Private Property, and Sustainability
    • Literature and the Environment
    • Religion and the Environment in the Public Sphere

  • A closing keynote by Margaret Palmer, University of Maryland

-Lincoln Davies

October 24, 2012 | Permalink | TrackBack (0)

Tuesday, October 23, 2012

Alabama the Beautiful....and the Biodiverse: The Battle over the Forever Wild Program


Alabama is the undisputed king when it comes to freshwater mollusks . . . There are 182 species of mussels living the in the state’s rivers. No other state comes close. In fact, nowhere else in the world comes close in terms of the number of mussel species living in a single river basin . . . But Alabama tops another list, this one the list of mussel species being lost to extinction. Every year, the U.S. Fish & Wildlife Service lists a few more Alabama mussels as extinct. Dozens are already gone forever.

- Ben Raines,

...And that's the latest news out of Alabama, where the U.S. Fish and Wildlife Service recently listed eight more mussel species as protected under the Endangered Species Act - species which had been up for listing since 2004. Scientists are making efforts to restore threatened and endangered mussel species through a variety of reintroduction plans in rivers across the state. Yet rivers that were once clear before the 1950's, with water filtered by up to 100 year old mussels, are now muddied and brown. Mussel decline has been attributed to numerous factors, but primarily the dams that have taken over waterways in the state.

Alabama is in the top five most biodiverse states by species richness. The Nature Conservancy listed the Cahaba River Valley as one of 8 biodiversity hotspots out of over 2,000 watersheds in the U.S. A few other notable data points from the Cahaba River Society website:

  • The World Wildlife Fund designated the Mobile/Tennessee/Cumberland river system as among the 19 highest priority places to save on the planet in the next decade.
  • The National Geographic Society College Atlas of the World notes that the Cahaba River is one of six biologically rich areas in the world threatened by “habitat loss and fragmentation, invasion by non-native species, pollution, and unsustainable exploitation…” which follow from economic activity and population growth.
  • The Sierra Club published America’s Wild Legacy, which designates “The 52 most important places to protect within the next 10 years." In Alabama, the Upper Cahaba River was selected as that focus.

Though beautiful and biodiverse, the species richness of Alabama is under great strain. This is why the upcoming November 6 vote on Alabama's "Forever Wild" program is so important. The vote would renew the wildlife preservation program for another 20 years, though it is faced with opposition from the same political ideologues that have influenced the dialogue from the extreme right at the federal level. The program should be renewed, as Alabama's public conservation lands only amount to 4% of the state's total land area - far less than the 12% average in other southeastern states, and a drop in the bucket, of course, compared to western lands. Hopefully Alabama will overcome the short sighted influences of those who refuse to think of future generations and will renew Forever Wild. As Paul Johnson of the Alabama Aquatic Biodiversity Center stated, "Alabama is an aquatic biodiversity haven, not only nationally, but globally…We’re trying to protect that, preserve it.”

- Blake Hudson

October 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Call for Papers - Regional Ocean Governance @ Seton Hall Law

Seton Hall law school has announced a symposium on Regional Ocean Governance: Legal and Policy Solutions for Mid-Atlantic Ocean Planning, which will be held in Newark, New Jersey on Friday, March 1, 2013.
Coincident with the symposium, a call for papers has been issued.  Paper proposals are due November 9, 2012.  Papers will be published in a special issue of the online Sea Grant Law and Policy Journal, which is published by the National Sea Grant Law Center.
Additional details can be found in the official call for papers.
Questions should be directed to Marc PoirierPeter Rowe, or Tony Macdonald.
-Lincoln Davies

October 23, 2012 | Permalink | TrackBack (0)

The Candidates on Climate Change: Unspoken but not Unclear

As noted by many others, climate change was MIA at the presidential debates and, to a large degree, throughout the election season.  So let's ask the two key questions and let their (past) words speak for themselves: 

What causes climate change?

September 2012, Charlotte, NC: “My [energy] plan will continue to reduce the carbon pollution that is heating our planet - because climate change is not a hoax.”

October 2011, Pittsburgh, PA:  “My view is that we don't know what's causing climate change on this planet.”

Do you support US policies to reduce carbon emissions?

November 2011, Canberra, Australia: “As we move forward over the next several years, my hope is, is that the United States, as one of several countries with a big carbon footprint, can find further ways to reduce our carbon emissions,”

November 2011, Manchester, NH: “Now I know there is also a movement to say that carbon dioxide should be... managed by the Environmental Protection Agency. I disagree with that. I exhale carbon dioxide. I don’t want those guys following me around with a meter to see if I’m breathing too hard.”

- Lesley McAllister

October 23, 2012 | Permalink | Comments (1) | TrackBack (0)

In Case You Missed It - Week of 10/15 - 10/21

- No, you didn't miss it.  Other than a sideswipe at the Migratory Bird Treaty Act and some love for the coal industry, environmental issues were't much of a part of the second presidential debate (or the third).

- Authorities in Hong Kong confiscated an enormous shipment--one of the largest ever--of illegal ivory.

- EPA's air quality standards for hydraulic fracturing were challenged from all sides.

- EPA and the National Highway Traffic Safety Administration published their final rule raising fuel economy standards.

- The Journal Nature Climate Change published a study predicting that climate change will substantially decrease the productivity of rice plants and substantially increase greenhouse gas emissions from rice farming.

October 23, 2012 | Permalink | TrackBack (0)

Monday, October 22, 2012

Fifteenth Annual Conference on Litigating Takings Challenges @ UC Hastings

The 15th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations will be held this year on Friday, November 9 from 7:30 a.m. until 5:30 p.m. at UC Hastings in San Francisco.

The conference description:  "This conference explores the regulatory takings issue as it relates to land use and environmental regulations.  The conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent decisions and pending court cases. Some of the topics to be discussed include the pending U.S. Supreme Court case of Arkansas Game & Fish Commission v. United States, recent and pending court cases arising from regulation of surface and groundwater resources, current issues in assessing the economic impact of regulatory action in takings cases, sea level rise due to climate change and its effects on coastal development, and the latest takings developments on the international stage including the current status of investor-state expropriation claims under international trade agreements."

The full conference agenda is available here, and registration here.

-Lincoln Davies

October 22, 2012 | Permalink | TrackBack (0)

Sunday, October 21, 2012

Call for Papers - Laying the Foundation for a Sustainable Energy Future @ GW Law

George Washington University law school has issued a call for papers for its conference,

"Laying the Foundation for a Sustainable Energy Future," which will be held April 10-11 in Washington, D.C.  Papers presented at the symposium will be published in the GW Journal or Energy and Environmental Law.

Here is a snippet of the announcement:  "We will explore the economic, national security, and social justice aspects, as well as the environmental implications of the concept of sustainable energy.  Sustainable energy implies that decision makers must take into account the significant benefits and risks of conventional energy resource development, the need for improving our energy infrastructure, and the cost and uncertainties of emerging technologies. Coming to grips with today’s energy challenges will test the patience of investors, the resilience of energy consumers and competitive markets, and the prudence of government policymakers and industry leaders over the quarter century.  This may prove to be a transformative period for the U.S. energy economy.  The program will explore how we might design an improved energy system that is 'built to last' and serves the broadest public interests – reliability, security, cost, minimal harm to the physical environment, human safety, competition and ease of market entry, technological innovation, equitable burden sharing, regard for intergenerational impacts – while minimizing regional conflicts and short-term 'stimulus and response' stratagems."

Abstracts for proposed papers are due November 19, 2012.

Questions should be addressed to Jessica Wentz.

-Lincoln Davies

October 21, 2012 | Permalink | TrackBack (0)

Saturday, October 20, 2012

UCLA / UC Berkeley Symposium - Saving Public Transit

UCLA Law and UC Berkeley Law have announced an upcoming symposium they will hold on Friday, November 2, 2012 from 9 a.m. until 4:30 p.m. in Los Angeles on the subject "Saving Public Transit."  The announcement describes the symposium thus:

"Public transit in California and the nation-including the shuttles, buses, and passenger rail that serve our communities-has been battered by recession and dwindling public sector budgets. At the same time, ridership in many areas has spiked. This conference will highlight the challenges facing transit and explore solutions to overcome them and develop a world-class transit system. Art Leahy, Chief Executive Officer of the Los Angeles Metro, will be the keynote speaker."

For a full conference agencda, visit the conference website.  Registration is available here, and is available for 4.25 hours of MCLE credit.  There is also a live simulcast.

-Lincoln Davies

October 20, 2012 | Permalink | TrackBack (0)

Third Annual Environmental Law and Justice Symposium @ FAMU

Florida A&M law school has announced its Third Annual Environmental Law and Justice Symposium, which will be held in Tallahassee on November 1-3, 2012.  The symposium theme is “Climate Change and Global Food Security.”

The symposium program is available here.

Registration also is available online here.

CLE credits are available.  Questions may be directed to Randy Abate.

-Lincoln Davies

October 20, 2012 | Permalink | TrackBack (0)

Friday, October 19, 2012

Univ. of Utah Free Screening - Energy Documentary "Switch"

This coming Monday, October 22, 2012 at 7 p.m., the University of Utah College of Engineering and the Energy & Geoscience Institute are hosting a free screening of the new, award-winning energy documentary, Switch.

The screening will take place at the University of Utah Marriott Library Gould Auditorium.  Although the screening is free, registration is requested.

The film's trailer is available at

The film is described as delivering "straight answers to today’s most controversial energy questions, as energy visionary Dr. Scott Tinker travels the world, exploring leading energy sites, from coal to solar, oil to biofuels, most of them highly restricted and never before seen on film.  He seeks the truth from international leaders of government, industry and academia, then cuts through the confusion to discover a path to our energy future as surprising as it is practical.  As no documentary before it, SWITCH has been embraced and supported by people across the energy spectrum: environmentalists and academics, fossil and renewable energy experts, scientists and economists."

A short discussion will follow the screening.

-Lincoln Davies

October 19, 2012 | Permalink | TrackBack (0)

Thursday, October 18, 2012

More on Categorical Rules in Takings Law

Earlier this week, Dave Owen authored a thought-provoking post on this blog suggesting that recent activity surrounding the Takings Clause at the U.S. Supreme Court may reflect the Justices’ discomfort with categorical rules.  I thought I might add a slightly different and, sadly, far less optimistic perspective.

Professor Owen's post honed in on one of the more significant tensions in takings jurisprudence: “the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.”  He noted the traditional perception that “the anti-regulatory agenda and the clarity agenda” often are aligned, yet suggests that the Supreme Court’s recent steps into the takings morass might not necessarily fit within that perception.

The Roberts Court has decided one takings case (Stop the Beach Renourishment v. Florida Department of Environmental Protection) and two others are pending this term (Arkansas Game & Fish Commission v. United States and Koontz v. St. Johns River Watershed Management District).  It is at least arguable that an anti-regulatory sentiment and categorical rules figure prominently in all three.

It is true that Justice Scalia’s plurality opinion in Stop the Beach rejected a categorical rule against the theory of “judicial takings;” however, in lieu thereof, the judicial takings test set forth in that opinion—that a judicial decision declaring that an “established” property right “no longer exists” implicates takings protections—could itself be considered a categorical rule.  Justice Scalia’s test could be interpreted to extend the reach of judicial takings to include every judicial change to any previously declared property principle.  The per se quality of the plurality’s standard in Stop the Beach—in the words of Justice Scalia, its “definiteness”—is reminiscent of the Court’s prior holdings that regulations that result in physical invasions or total economic wipeouts categorically amount to takings.  Indeed, it is the bright-line nature of the Stop the Beach plurality’s test that has led several takings scholars to predict that Justice Scalia will have grave difficulty in garnering a fifth vote for his vision of a judicial takings doctrine in the future. 

In an interesting side note, as reported here, Justice Stevens recently explained his recusal in Stop the Beach in a speech at Chicago-Kent College of Law.  Though he stepped aside given that his wife owned waterfront property in Florida, Justice Stevens suggested that, had he participated in the case, he first would have “tried to persuade [his] colleagues to dismiss the case as having been improvidently granted review, because there was no justification for using it as a vehicle for discussing the subject of judicial takings.”  He went on to say that he would have refused to join Justice Scalia’s “advisory opinion” because: (1) if any taking occurred, it was not committed by a court; (2) federal review of state court decisions altering existing rules is grounded in the Due Process Clause, not the Takings Clause; and (3) he was “sure Justice Brandeis would not have joined" Justice Scalia’s opinion.

With respect to Arkansas Game & Fish Commission, there arguably is precedent suggesting the categorical imperative that temporary flooding resulting from the government’s operation of a dam cannot serve as the basis for a takings claim.  Yet the claimants advocate for a different categorical rule, one suggesting that temporary permanent invasions of land amount to per se takings.  When the cert petition was granted, Richard Frank (U.C. Davis) predicted on the Legal Planet blog that “the Court will likely wind up ruling in favor of Arkansas and against the federal government, finding that even non-permanent physical invasions of property are compensable under the Fifth Amendment.”  And as I noted here, commentators on both sides of the takings divide echoed this position after the oral argument earlier this month (though I, admittedly, was not as convinced that the federal government got the short end of the stick at oral argument).

As for Koontz, the Court is slated to review two issues.  On the first, a considerable majority of the many state and lower federal courts that have addressed whether monetary exactions are subject to the strictures of the Nollan and Dolan tests have answered in the negative.  If this is considered a categorical rule, its converse—that monetary exactions are subject to Nollan and Dolan—would seem to be, as well. 

In those jurisdictions where monetary exactions are not subjected to Nollan and Dolan scrutiny, those exactions are regularly subjected to the ad hoc analysis set forth in Penn Central.  But the second issue in Koontz is different in this regard: the Florida Supreme Court arguably held that exactions that are proposed but later refused or withdrawn can never be challenged as takings under any test.  The U.S. Supreme Court’s abandoning this categorical rule seemingly would depart from the traditional perception that Professor Owen so readily identified, in the sense that eschewing the categorical rule would promote the anti-regulatory agenda at the expense of clarity.

-Tim Mulvaney

October 18, 2012 | Permalink | TrackBack (0)

Wednesday, October 17, 2012

A Plea for Environmental Programs to Stop Sending Paper Brochures

I have been slowly but surely cleaning out my office the last couple of months as part of a broader effort at more functional patterns.  Sadly, most of my cleaning has consisted of recycling piles of law spam that made it into my office and never got sorted.  The spam at times made me miss meaningful communication and was just a depressing waste.  I have instituted a new rule that no pile makes it from the mail room to my office without my going through it to recycle spam.

In that context, I have been particulary saddened to get a number of paper brochures just this past week from leading environmental programs.  I promptly recycled them and it lowered rather than raised my opinion of those programs.  As we've moved to electronic announcements towards the list, some leading programs have moved towards only sending email updates.  I've been trying to send emails acknowledging those updates so that those programs know that they can actually reach people this way.  At Minnesota, we are aiming to go electronic in our communications with you and I'll be in touch soon with our latest.  But it should be all of us, as we try to convince our colleagues outside of this field to limit the brochures as well.  So please, environmental law programs, stop wasting paper and adding to the spam of this time of year.   

Hari Osofsky

October 17, 2012 | Permalink | Comments (2) | TrackBack (0)

Monday, October 15, 2012

Takings, the Supreme Court, and the Demise (Maybe) of Categorical Rules

­­The United States Supreme Court recently granted cert in Koontz v. St. Johns River Watershed Management District, a takings case involving wetlands and exactions.  The case already has received quite a lot of attention on blogs and elsewhere (see, e.g., here, here, and here, as well as Tim Mulvaney's previous posts on this blog) and I have only one small, and perhaps somewhat obvious, point to add.

For years, the Court’s takings decisions have sought to resolve a few tensions.  One—probably the most important one—pits our desire to protect private property owners from regulatory control against our desire to let government protect society (including other property owners) from problematic uses of property.  But another prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.

Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned.  That’s most prominently a product of Justice Scalia’s opinion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), which many commentators viewed as an effort to provide property owners with predictable anti-regulatory protection through the creation of a categorical legal test.  That alignment has manifested itself in other contexts as well.  The one I’m most familiar with is the intersection of takings doctrine and water rights, where takings plaintiffs and advocacy firms have sought, largely but not entirely unsuccessfully, to convince courts that the categorical physical takings test ought to apply to regulatory restrictions on water rights.  Conversely, some advocates of a more government-friendly takings doctrine have argued that the ad-hoc Penn Central takings test has much to offer.

The last few years, however, have produced a few cases that don’t fit with that traditional perception.  In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible.  Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings.  Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States.  The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land.  Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule.  Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim).   While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.

So does that mean that the conservative justices have discovered a new love for ad-hoc standards, and have lost their interest in categorical rules?  Probably not.  First, one plurality decision, an oral argument transcript, and a cert grant don’t exactly add up to a trend (and if it was a trend, it wouldn’t be entirely new; the Court’s First English decision, which rejected a categorical rule against temporary regulatory takings, was to similar effect).  Second, the justices may just care a whole lot more about regulatory intensity than they do about legal predictability.  Categorical rules and ad hoc analyses, then, are primarily tools to be deployed in a larger struggle, not independent ends.

-Dave Owen

October 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

In Case You Missed It: Week of October 7-13

Here's a good overview of Romney’s environmental positions (anti-Clean Air Act, pro-Keystone XL, anti-fuel efficiency, and pro-oil and gas exploration) and various barriers that would (hopefully) prevent him from doing what he says he would do.

Oil that may be from BP’s Macondo well showed up again in Gulf waters.

Department of Interior is fast tracking renewable energy development on public lands in the West.  On Tuesday, it announced that over 10,000 megawatts (MW) of renewable power have been authorised on public lands. On Friday, it finalized a Programmatic Environmental Impact Statement (PEIS) for a plan regarding utility-scale solar energy permitting in Arizona, California, Colorado, Nevada, New Mexico and Utah.

Deforestation spiked in Brazil in August, prompting the Brazilian federal government to announce the establishment of a new, special environmental security force.

A new poll from George Mason University and Yale’s Project on Climate Change Communication found that a large and growing majority of Americans say “global warming is affecting weather in the United States” (74%, up 5 points since our last national survey in March 2012).

October 14, 2012 | Permalink | TrackBack (0)

Tuesday, October 9, 2012

In Case You Missed It - Weeks of September 23rd-October 6

* On October 1, President Obama proclaimed October 2012 to be National Energy Action Month.

* At the first presidential debate on October 3, the questions did not focus on the environment, but Romney attacked Obama's funding of renewable energy projects.  Coal stocks rose following the debate.

* Total SA Chief Executive Officer Christophe de Margerie told the Financial Times that "companies should not drill for crude oil in Arctic waters because the environmental risks are too high."

* Eight environmental groups and thirty-three manufacturer's added their support to Michigan's Proposal 3 ballot measure, which would require Michigan utilities to produce 25% of their energy from renewables by 2025.

* Barry Commoner, a scientist and pioneer of the environmental movement whose studies of strontium-90 in children's teeth helped lead to a 1963 partial ban of above-ground nuclear testing, died on October 2 at age 95.

* Robert “Bob” Ragland, who founded Jacksonville's Sierra Club Chapter, landscaped and maintained several Avondale parks, and worked to raise awareness about invasive plants died on September 27 at age 92.

* The Nest, a company co-founded by ipod designer Tony Fadell, announced an upgraded version of its learning thermostat.


October 9, 2012 | Permalink | TrackBack (0)