Environmental Law Prof Blog

Nuclear Waste Siting Processes: Looking for Volunteers

Last time, I wrote about the Yucca Mountain controversy and highlighted the question of how to structure a nuclear waste siting process in such a way as to maximize the voices of many stakeholders.  The Blue Ribbon Commission has recommended a voluntary engagement approach for the United States, whereby an agency would publish technical criteria and invite interested communities to volunteer to host such a site.  This suggestion, I’ve noticed, often generates you’ve-got-to-be-kidding-me laughter—what community would ever volunteer?

As it turns out, some do, raising a host of other questions about process design in the context of dread risks.  Last month, Spain announced that a small village south of Madrid has been selected to host the country’s first full-fledged nuclear waste repository.  According to news reports, the citizens of Villar de Canas are thrilled:  they lobbied hard for the facility and hope it will remedy the town’s 30% jobless rate. 

A similar story is unfolding in the United States:  the town of Carlsbad, New Mexico is already host to the Waste Isolation Pilot Plant (WIPP), which stores transuranic waste in an underground repository.  The location was selected in the early 1970s, with strong local support.  Even so, the first shipment of waste didn’t arrive until 2001, following many years of technical study, stakeholder negotiations, legal challenges, and legislative activity.  Now that Yucca has stalled, Carlsbad is volunteering to take the nation’s high-level waste. 

Putting aside the technical considerations—for instance, the salt beds underlying Carlsbad are excellent geologically, but they are not perfect—could Carlsbad’s interest short-circuit what should be a more deliberative process?  Any repository will bring money and jobs to a locality, in addition to benefits packages that are typical of nuclear waste siting schemes.  Should other communities have a chance to compete for those benefits? Should we be concerned that money and jobs operate as bribes? Is there an environmental justice problem here, or should we be comfortable with communities speaking for themselves?

A number of process design features might ease some of these concerns.  For example, voluntary engagement schemes require strong veto authority for the potential host communities to ensure they have meaningful bargaining power.  They start by identifying a site’s necessary technical criteria as a way of building scientific legitimacy into the process.  And they do allow communities to compete.  Of course, our federal scheme adds some interesting wrinkles to the process.  While Spain could work directly with its localities, the United States will have to develop consensus across states, tribes, and local governments.  It promises to be a long road ahead, but hopefully we can collectively make a decision about where to site our waste.

--Emily Meazell

Ambiguity's Ambiguities

My administrative law class recently covered Chevron v. Natural Resources Defense Council.  Our casebook (Funk, Shapiro, and Weaver, which I highly recommend) uses problems, and at the end of the Chevron problem, I always ask how many students think the government should prevail and how many would support the petitioners.  Most years the split is about fifty-fifty.  I find that really interesting.

In part, that split indicates that the casebook authors chose a good problem.  But I’ve found similar splits when Chevron questions come up in other classes, and I think the persistent disagreements indicate just how much normal people disagree about what counts as ambiguous.  That’s not exactly an original observation, but it is an important, and sobering, one.  So much of legal training is based on the premise that if you write carefully, people will understand your meaning and be persuaded by your arguments.  Yet every year, my informal, non-rigorous studies of my own classes call even the first part of that premise into question.  They remind me that just agreeing about the boundaries of ambiguity, let alone the meaning of language, can be a hard thing to do.

These little exercises also raise intriguing questions about factors affecting perceptions of ambiguity.  I wonder if the disparaties of perception among my students are largely random, or if there are predictable controlling variables.  Political ideology clearly does seem relevant, but what else might matter?  Are there personality traits that correspond to a willingness to perceive ambiguity or clarity?   Obviously a threshold level of intelligence is necessary to perceive clarity in anything, but is there a point at which smarter people (however you choose to measure that) start to perceive more ambiguity?  Does legal education change people’s perceptions of ambiguity?  All these questions might better be answered (maybe they have been answered) by linguists than lawyers, but they also seem to have implications for the ways we teach and practice law.

-Dave Owen

Wind Energy Continuing to Grow Globally

Since moving to Minnesota, I've been thinking a lot about wind energy.  This new focus has come in part because the highest onshore wind capacity in the United States, as depicted in this National Renewable Energy Laboratory map, is a strip up the country's middle.  Also, as I've been increasingly frustrated by the polarized dialogue about climate change, it's been exciting to observe MISO, the Midwest's Regional Transmission Organization, experimenting with how to get intermittent renewables (with a focus on wind) better integrated onto its grid.

But wind power is not simply a dynamic industry in my region of the country.  The Global Wind Energy Council released new statistics last week indicating that despite the bad global economy,

the wind industry installed just over 41,000 MW of new clean, reliable wind power in 2011, bringing the total installed capacity globally to more than 238,000 MW at the end of last year. This represents an increase of 21%, with an increase in the size of the annual global market of just over 6%.  Today, about 75 countries worldwide have commercial wind power installations, with 22 of them already passing the 1 GW level.  

This continued expansion of the renewable energy industry globally gives me some hope for the energy transition we need to make to have a cleaner, more secure future.

Hari Osofsky

What Do Law Professors Do? It's All About Your Perspective

This is floating around the internet, though I pulled it off of Jim Milles Twitter feed. I'm sure we could come up with a variety of permutations and combinations of different perspectives :-)

And then there are the lawyers:

- Blake Hudson

Changing the Way We Think (about Building)

Existing buildings – in their physical presence, design, and operations - challenge the goal of sustainability in the built environment.  Older buildings can be leaky, inefficient, and even unhealthy, and they typically do not perform well against the expectations that we draw from today’s green building techniques and technology.    

There is evidence that green building programs are impacting the existing building stock through retrofit programs offered in LEED and others.   The number of projects certified under LEED for Existing Buildings: Operations and Maintenance (EBOM) surpassed those certified under its new construction counterpart in 2009.  Spending on remodeling and retrofits has been on the rise and is predicted to grow to $10.1 billion-$15.1 billion by 2014.  Recently, the USGBC announced that LEED-certified retrofits have outpaced new construction certifications on a cumulative basis.

We might view green retrofits of existing buildings as significant.  Of course, the past is a major obstacle for achieving sustainability in the built environment, and the provision of alternatives to “business as usual” in existing structures is itself a victory.  In addition, and perhaps more importantly, the growth in green retrofits suggests that sustainability may involve changes in people as well as buildings. 

- Keith Hirokawa

EPA Releases Inventory of Legal Authorities to Advance Environmental Justice

Last fall, in a speech I gave at an environmental justice event in Los Angeles, I ruffled some feathers with an impromptu line that went something like this:  “Believe it or not, federal environmental statutes say nothing directly about environmental justice.” During the “Q & A” I was challenged by an environmental activist and lawyer who listed various ways that advocates had successfully used federal environmental statutes to address inequalities in many of California’s minority and low-income communities.

I saw immediately that I had not been clear.  For what I meant was that although environmental statutes could be used to further the interests of social justice, the terrain was not landscaped for that purpose. It took activists with imagination and grit to climb the peaks my questioner was talking about.  It took lawyers who could scan the glaciers of the federal code and find a foothold—a place where you could jam your steel-toothed boot, stabilize your momentum, and launch yourself forward. (EPA policy analyst Abby Hall and I expand on our theory of regulatory “footholds”—and also regulatory “rope lines”—here.)

Like community lawyers, policy makers need footholds too. EPA Administrator Lisa Jackson has made environmental justice a pillar of her tenure. But many of our environmental statutes, because they pre-date the modern environmental justice movement, were not developed with this priority in mind.  So Administrator Jackson asked her lawyers to survey the landscape of environmental authorities for legal standards and directives that would provide the positioning and leverage to promote “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income.” EPA’s lawyers then catalogued those footholds and put them in a guide intended for use across the agency.

In an admirable display of integrity and transparency, EPA has now publicly released that guide for all lawyers, activists, and citizens to see – and perhaps use.

The document, titled Plan EJ 2014:  Legal Tools, offers “key legal authorities for EPA policy makers to consider in advancing environmental justice.”  (Disclosure: as an EPA official in 2009 and 2010, I contributed to the development of environmental justice policy and reviewed legal strategies related to environmental justice.) More than a hundred pages in length, “Legal Tools” reviews enabling provisions along the full armada of environmental acts.  There are sections on air programs, water programs, and programs in Indian country.  There are discussions of environmental impact statements, government procurement programs, the grant-making process, and more. 

Scott Fulton, EPA’s general counsel, emphasizes in a foreword to the report that “Legal Tools” is a “living document” meant to adapt and grow.  By necessity, it focuses on “those authorities that appear to be most relevant to the environmental justice challenge as we currently understand it.”

Some of those authorities have already been deployed. When EPA recently required better monitoring of nitrogen dioxide emissions near highways (where low-income and minority populations are more likely to live), it grounded its decision in the Clean Air Act’s injunction to protect public health with an adequate margin of safety, including the duty to consider the vulnerability of “sensitive populations.” (EPA’s recent Interim Guidance on considering environmental justice in rulemaking tells the story nicely.)

 Similarly, in proposing new controls on hazardous-material recycling, EPA relied on an express concern for public health stated in the Resources Conservation and Recovery Act (40 C.F.R §§ 260, 261, 266) to support a full examination of demographic analysis and a specially tailored community engagement plan.

Given the scope of the “Legal Tools” inventory, there are bound to be spots in need of expansion and improvement.  That’s why “Legal Tools” should be circulated widely among scholars, lawyers, and other interested readers. Let’s start talking about the next pinnacle EPA should confront. Few mountains have handrails.  But the footholds are there.

- Rob Verchick

Rob Verchick is a law professor at Loyola University New Orleans and a research scholar at the Center for Progressive Reform. This entry is cross-posted at CPRBlog. 

I ♥ Climate Scientists

Happy Valentine’s Day!   I have a special new Valentine today: Climate Scientists.  I urge you to make them your Valentine too by visiting the “I Heart Climate Scientists” facebook page.

I must say I have been surprised over the years by the vilification of climate scientists, which was described well yesterday by Cara Horowitz at Legal Planet.  In my graduate work at the Energy and Resources Group at UC Berkeley in the early 1990s, I took perhaps one of the earliest courses on climate science.  With amazing professors John Harte (see here for a recent interview on climate science in Forbes) and John Holdren (currently on staff at the White House), the class spent the better part of the semester essentially constructing a simple general circulation model.  From this as well as other interactions I have had with scientists working in the field, I am just baffled that the notion that climate scientists are in it for the money and other similar conspiracy theories have had any traction at all.  

So don’t forget to share some love with climate scientists today and whenever else you have the opportunity!

- Lesley McAllister

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

- Southern Company received Nuclear Regulatory Commission approval to construct two new reactors at a Georgia nuclear plant;

- Citing environmental regulatory changes, including EPA's recent mercury rules, FirstEnergy announced it would close three coal-fired power plants in West Virginia. This follows FirstEnergy's announcement last month that six other plants would be closed;

- The League of Conservation Voters released its annual scorecard tracking congressional voting on environmental issues.

- In New Mexico, the Environmental Improvement Board repealed the state's cap-and-trade program.

- EPA submitted the third portion of its greenhouse gas "tailoring rule" for OMB review.

Small Island States Lose Powerful Voice

By highlighting their unusual plight, small island states have begun to shift the discussion of climate change mitigation from one of science and politics to ethics.  The atoll nations facing the specter of significant loss of territory due to sea level rise have symbolized the urgent need to ratify a binding and ambitious global agreement.  President Mohamed Nasheed of the Maldives - an archipelago of about 1,200 coral islands - was one of the most compelling voices speaking on behalf of the most vulnerable.

After several weeks of protests and clashes between defector police officers and the Maldivian army,  Nasheed, who became the country’s first democratically elected president in 2008 and has since gained global attention for his activism on climate change, resigned last week.  As reported in BBC News, Nasheed stated he was forced to step down “at gunpoint” and insists that his predecessor Maumoon Abdul Gayoom, who won the country’s six previous presidential elections as the only candidate on the ballot, orchestrated the protests as part of a conspiratorial coup.

Since his resignation, Nasheed’s supporters from the Maldivian Democratic Party (“MDP”) have been rallying at the capital in Male calling for a snap election to determine the genuine wishes of the people.  The protests have, at times, erupted in violence and led to detainment.  Nasheed has rejected U.S. calls for compromise and expressed disappointment with India’s lack of engagement. The next presidential election is scheduled for 2013.

Nasheed was a journalist and political prisoner during Gayoom’s thirty-year autocracy.  As CNN reported, Nasheed was among Gayoom’s fiercest opponents and criticized Gayoom for “crushing dissent, amassing wealth, and stacking his administration with friends and relatives.”  Once in office, Nasheed pledged to complete the country’s transition to democracy and attracted worldwide attention for his campaign for action on climate change.  

The Maldives is situated 4.9 feet (1.5 meters) above sea level and faces threats from rising seas caused by climate change.  Its capital Male is already protected by sea walls - an impossible fix for all of the thousand plus islands of this Indian Ocean nation.

In one of his most creative attempts to call attention to impacts on small islands, Nasheed held an underwater cabinet meeting to highlight his cause in 2009.  It is not clear how his ouster will impact the future of his country, but to be sure the events of last week will cast a shadow worldwide.

 -Maxine Burkett