Environmental Law Prof Blog

Please Sign the Energy-Water Nexus Roadmap Petition

In a recent article, I argued that certain policies in the electric power sector could further both climate change mitigation and adaptation (Adaptive Mitigation in the Electric Power Sector, 2011 BYU L. Rev 2116).  An important example relates to the differential water requirements of power generation technologies: wind and solar PV have low water requirements, while fossil fuel and nuclear generally have very high ones.  Astoundingly, about 40% of withdrawals of freshwater in the US are for thermoelectric power plants.  

In my research for the article, I was delighted to find that a provision of the Energy Policy Act of 2005 required the Department of Energy (DOE), within 2 years, to produce a report on the nexus between energy and water supply and demand and a set of recommendations for future actions (42 USC 16319).  But I soon learned that only an initial report had been produced.  “Energy Demands on Water Resources” was publicly released in February 2007.  The process of putting together recommendations was dubbed the “Energy-Water Roadmap process,” with the goal of “summarizing the needs, prioritization criteria, major gaps, innovative technical approaches and associated research needs, R&D priorities and strategies, and associated policy, regulatory, and economic assessments.”  Now, five years after its due date, the Roadmap has still not been publicly released and, as of 2009, it had reportedly already been rewritten 22 times.  

A few days ago, a petition was created asking the White House to compel DOE to complete the Roadmap report.  The petition has fewer than 1,000 signatures and it needs 100,000 within 30 days (by February 24) to get a response from the White House.  The odds seem long, but perhaps not impossible.  You can sign it here (whitehouse.gov). 

- Lesley McAllister

Deja Vu, All Over Again

That's the feeling one gets reading today's news about northeastern fisheries.  This year's story is much like the stories from other recent years, and those stories are quite similar to the twenty-year-old stories in the natural resources casebook I use.  Fisheries regulators set limits.  Fishermen complain that the limits are unjuustified and will be economically devastating.  Regulators and environmental advocates point out that the reason these limits have to be stringent is that the limits of previous years weren't stringent enough (in their public statements, they're usually polite enough to not point out that those limits weren't sufficiently stringent partly because fishermen and their supporters resisted argued that lower limits would be economically devastating).  Northeastern politicians ask for disaster relief (only this year, they don't get it).

One hopeful sign is that this isn't the story for all U.S. fisheries.  Many are actually stable or improving, and legal innovations like catch share programs are part of that positive story.  And another somewhat hopeful sign is that some species in the waters off New England actually are doing well.  Unfortunately, it's hard to catch those species without also catching cod, which aren't doing well at all.  And that means, as today's news unfortunately reminds us, that the northeastern fisheries remain stuck in the same vicious cycle.

-Dave Owen

"Forward on Climate" Rally in DC on 2/17

350.org and the Sierra Club are organizing a “Forward on Climate” rally in DC on Sunday, February 17 (Presidents' Day Weekend).  They hope it will be the largest climate rally in history.  I hope so too because climate change really needs some popular mobilization.  On the first day of my environmental law class this semester, I gave students a list of major federal environmental statutes to provide an overview of the field.  We observed just how much of the legal development happened in the 1970s, and discussed why.  The incredible surge of popular mobilization that occurred in the late 60s and early 70s is certainly a big part of the answer.  Twenty million Americans participated in Earth Day in 1970, a full 10% of the country’s population.  Just imagine 10% of today’s population today -- 31 million people -- demonstrating for action on climate change.  It might even jolt today's Congress into serious action.

By the way,  if you have time, check out this PBS documentary on the history of the environmental movement, Earth Days (2010, 113 mins., part of the American Experience series).

- Lesley McAllister

In Case You Missed it: Week of January 21-27

- Climate change took a prominent place in President Obama's Second Inaugural Address.

- The D.C. Circuit overturned EPA's biofuels mandate.

- The D.C. Circuit also denied rehearing in the cross-state air pollution case.

- And (it was a busy week for air pollution cases) the D.C. Circuit also sided with the Sierra Club in a dispute over an EPA rule that exempted some stationary sources from monitoring requirements for fine particulate matter.

- Nebraska Governor Dave Heineman approved a route for the Keystone XL Pipeline.

- The United State Court of Federal Claims dismissed a billion-dollar lawsuit brought by Westlands Water District against the United States.

Latest on Beach Access in Texas: Brannan Vacated and Remanded in Light of Severance

In 2010, in the matter of Brannan v. State of Texas, a Texas appellate court rejected a takings challenge to the State’s Open Beaches Act (OBA), a longstanding statute that affords the public a mechanism to enforce collective rights to access beaches as acquired by dedication, prescription, or custom. Today, the Texas Supreme Court vacated that decision and remanded to the appellate court for further consideration in light of its 2012 holding on rehearing in Severance v. Patterson.

In Brannan, the State, in accord with the OBA, ordered a number of Gulf-front homes removed after erosion and storm events combined to move the first line of vegetation landward of where those homes were located. Fourteen landowners challenged this action as a taking. The appellate court dismissed the landowners’ claims because the beach had been historically dedicated to the public use, and the existence of the homes impeded the public’s access to it.

Today, without hearing oral argument, the Texas Supreme Court vacated that decision and remanded to the appellate court in a vague, two-page per curiam order. While there was no concurring or dissenting opinion, three members of the court did not participate in the decision. The order, available here, reads in pertinent part:

The court of appeals rejected petitioners’ [takings] claims, and petitioners sought review in this Court.

While their petition has been pending, we have issued our opinion in Severance v. Patterson, 370 S.W.3d 705, 725 (Tex. 2012), concluding that “avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.” We now conclude that this case should be remanded to the court of appeals for further consideration in light of Severance.

***

It is not readily evident that this order forecloses any of the State’s arguments surrounding mootness, avulsion, and waiver moving forward.

On the first, the appellate decision in Brannan ultimately applied only to three claimants, for the other eleven claimants’ homes were destroyed by natural tidal surges prior to the court’s ruling; moreover, since 2009, all of the land at issue in the case has lain seaward of the high tide line and thus is subject to the public trust.

On the second, it is not clear that the shoreline in this area migrated landward as the result of an avulsive event. If the shoreline —and, thus, the public easement— migrated landward as the result of imperceptible erosion, Severance says that the easement does "roll" under Texas common law (such that the claimants would have no property right capable of being taken).

On the third, the State has alleged that the landowners waived their Severance claim. Though a remand “for further consideration in light of Severance” could be interpreted to say that the landowners have not waived their Severance claim, it seems that the Court might have mentioned waiver in its order (which it pondered for nine months after issuing Severance) if it actually was deciding the waiver question.

Stay tuned to the Environmental Law Professor’s Blog for updates on Brannan as this beach access dispute heads back to the court of appeals.

-Tim Mulvaney ([email protected])

Sunstein's arguments for Unilateral U.S. Action on climate change: But would it really be unilateral? Would it really help achieve an meaningful international climate treaty?

In a recent opinion posted in Bloomberg news, Cass Sunstein argues that the United States should act unilaterally in addressing climate change. This is an interesting argument coming from Sunstein, whose scholarship has highlighted the economic costs of "unilateral
U.S. action. In his recent opinion piece, he acknowledges the economic objection, which he terms as the Sophisticated Objection, to unilateral action. He provides three responses to counter the objection. First, U.S. leadership will likely persuade other countries to follow. Second, regulation will spur technological development, as did the ozone depletion treaty. Third, not all regulation will be costly to the U.S.; some may actually prove beneficial.

Each argument is valid and has been made by those favoring U.S. action on climate action in the past. Also, Sunstein acknowledges that there is no guarantee that unilateral action will yield an international agreement. The question, however, is whether U.S. action can be construed as unilateral action at all. And, whether the current design for international action is viable.

To be sure, from a limited perspective of comparing the United States with China, the former's action would be unilateral. However, a handful of Annex I countries are already committed to multilateral climate action. If the U.S. were to join in a climate treaty, it would simply strengthen the existing climate pact, at least in terms of participation. If, on the other hand, Sunstein is referring to unilateral action outside the Kyoto Protocol, it is unlikely that such action will persuade an international agreement. It may spur more "unilateral" action.

And then there is the bigger question: is the Kyoto Protocol design suitable to address the complex problem of climate change? As I argued in a short essay published in the Environmental Law Reporter recently, developing countries may simply not be equipped to implement market mechanisms to address climate change. Achieving measurable emissions reduction may then prove futile.

Thus, while U.S. participation in the multilateral process to address climate change is critical and would be extremely beneficial to moving forward on the climate change debate, the long term multilateral legal solution to the problem requires much more thought.

--Deepa

 

 

Fordham Environmental Law Review 20th Anniversary Book

Please see the announcement below:

The Fordham Environmental Law Review has announced it will celebrate the 20th Anniversary as a law review in 2013. The ELR is an outgrowth of the Fordham Environmental Law Council founded in 1969. In 1989, the Fordham Environmental Law Report began publishing environmental law-related articles, but the Report had yet to receive official journal certification from the Fordham Law faculty. In 1993, the Environmental Law Journal was granted its journal status and shortly thereafter was named the Environmental Law Review. The journal is founded on excellence and high quality scholarship and intends to elevate the status of the journal to new heights this coming year.

In November 2012, the Editorial Board announced a celebratory project to expand its readership and improve its scholarly contributions in recognition of this milestone. Entitled The Fordham Environmental Law Review's 20th Anniversary: The State of Environmental Law, the landmark book is due for publication in April 2013. The book's goal is to produce novel discourse and cross-dialogue on the current state of environmental law by showcasing essays from some of the most distinguished environmental law scholars in the United States, which will serve to highlight the trajectory of the environmental law discipline in the last 20 years, where the discipline stands today and where it is heading tomorrow.

The distinguished list of scholars includes a Foreword from Fordham Law Vice Dean Sheila Foster, Professor Thomas McGarity (Univ. Texas Law), Professor Robert Percival (Univ. of Maryland Law), Professor Paolo Galizzi, the ELR faculty advisor (Fordham Law), Professor Hope Babcock (Georgetown Law Center), Professor Ann Carlson (UCLA Law), Professor Robin Kundis Craig (Univ. of Utah Law), Professor David Dana (Northwestern Law), Professor Victor Flatt (UNC Law), Professor Alexandra Klass (Univ. of Minnesota Law), Professor Bradley Karkkainen (Univ. of Minnesota Law), Professor Alice Kaswan (Univ. of San Francisco Law), Professor John Nolon (Pace Law) and Professor Hari Osofsky (Univ. of Minnesota Law).

- Blake Hudson

Renewable Energy at the World Trade Organization: The case of Canada's Feed-in Tariff regulation

A WTO Panel recently gave its ruling on a renewable energy dispute brought against Canada by the European Union and Japan, separately [Canada-Certain Measures Affecting the Renewable Energy Sector]. Japan and the EU had challenged Ontario's Green Energy and Green Economy Act (OGEA) as violating WTO's Agreement on Subsidies and Countervailing Measures (ASCM), Agreement on Trade-related Investment Measures (TRIMs), and Articles III and XXIII of the General Agreement on Tariffs and Trade (GATT). The OGEA provided certain government assistance to its renewable energy sector, including feed-in tariff or price guarantees, but conditioned the benefits on producers using domestic content. One closely watched issue was whether the financial assistance constituted a prohibited subsidy under ASCM, i.e. whether the grant of a financial benefit conditioned on domestic content use was prohibited under ASCM.

Interestingly, the Panel did not reach the question whether the subsidy was prohibited. Instead, it ruled that the financial contribution by the government did not constitute a subsidy, because it did not confer a benefit on the producers. In arriving at this decision, the WTO Panel relied on one test for making a "benefit" determination, i.e. whether the financial contribution was not available to the producer in the market. The Panel essentially ruled that given the nature of electricity market, it could not find a free market for electricity that could serve as a benchmark for its analysis. In simple terms, the Panel found that there was no benchmark to determine what the market price for the renewable energy would be since electricity as a commodity was subsidized, and thus, it could not determine whether a benefit had been conferred. Therefore, the Panel found that the OGEA did not violate ASCM.

However, the Panel went further and found that the OGEA nevertheless violated TRIMs, which regulates protectionist measures in relation to investment, such as requiring domestic content use. The ruling requires Canada to remove the domestic content requirement. This is an interesting twist to the case, which could nevertheless test the willingness of nations to provide subsidies to their renewable energy sector, unless there is a domestic benefit in the form of job creation or economic growth.

The issue clearly does not rest here and the question that remains open is whether under TRIMs Canada can invoke GATT Article XX environmental exceptions, since renewable energy expansion constitutes an important tool in mitigating climate change. Even though none of the Parties involved categorized the dispute as a trade and environment dispute, the Panel decision may draw Parties closer to that issue.

--Deepa

Time to Stop Worrying About Population?

Ok, so we should still worry about population, but perhaps its time to start worrying about it in a much different way. For so long we have seen exponential population growth, and at times I have found myself mired in the depressing thought that the earth will one day be literally consumed by a zillion-billion human parasites sucking the last vestige of life from the planet (dose of sensationalism intended). Yet there is most likely an end in sight - a number upon which we can focus and begin to worry instead about how to manage the environment considering the relatively precise number of people that will be on the planet.

An article in Discover magazine recently highlighted that "population growth . . . has drawn the lion’s share of public attention," with the world expected to reach about 9-10 billion by 2050, but that "although billions of people are still in the pipeline, global population growth is slowing so rapidly that a decline in the population later this century seems unavoidable." Indeed, fertility rate is dropping rapidly almost everywhere around the world, but for sub-Saharan Africa (where it will eventually drop). As a result, "fertility collapse and accelerated aging have supplanted overpopulation as the most salient demographic trend." A country needs a fertility rate of 2.1 to replace its population (the .1 accounting for infant mortality). The article highlights that currently two-thirds of the 222 countries and territories in the world have fertility rates below 3, and 1/3 of those countries maintain rates under 2 (thus losing population). Though China is known for its high population, its fertility rate is now 1.5.

These numbers indicate that as developing countries continue to develop, their populations will continue to drop. The drop in population's beneficial effect on the environment, however, is offset (if not made worse) by the increase in a population's consumption. Nonetheless, the first step in knowing the exact parameters of consumption within which we must work is homing in on a more precise number of people on the globe with a specific level of environmental impact. At least there is comfort that a number is out there as a reference for managing the world's resources - comfort that we are likely to avoid the population bomb put forth by Paul Ehrlich. Granted, we may face a climate change bomb with the same environmental effects described by Ehrlich, or worse, but at least we are able to better understand where the world's demographic trends will lead us.

So, what to do with 9-10 billion people? Our resources are currently stretched to the max, and we are consuming 1.3 earth's worth of resources with the current population. Obviously, something must change in order to manage population/consumption dynamics over the next century. Population decline, of course, raises a whole host of other potential social and economic ills. Yet, if we can just make it over the hump, learn how to consume less per individual with less of an environmental footprint, align global market incentives and economic systems with environmental protection, and see populations fall across the board, then our ancestors 1,000 years hence may just wonder why we were so worried about population after all.

- Blake Hudson

In Case You Missed It: Week of January 13-19

Under pressure from industry, EPA drops an investigation despite evidence that a Texas company’s fracking activities could have contaminated residential wells.

The Supreme Court heard oral argument in Koontz v. St. Johns River Water Management District.  See useful commentary here, here, and here,

New York Times decided to close its environment desk, founded in 2009. Only about a dozen reporters at the top 5 US newspapers have environmental issues as their primary focus. 

PM 2.5 levels in Beijing exceeded 700 μg/m3 in many parts of the city (EPA’s 24-hour standard is 35 μg/m3).  The Atlantic compares air pollution in Beijing with that of Pittsburg a century ago (complete with some terrific historical photos), and points out that several decades passed before the political will developed to address it.  

A new study shows that black carbon -- emitted by diesel engines and some wood and coal combustion -- is the second most important individual climate-warming agent after carbon dioxide.  A good infographic about black carbon is available here at Climate Progress.

The Polar Bear Critical Habitat Decision

On Friday, Judge Ralph Beistline (U.S. District Court, Alaska) released an order setting aside the Fish and Wildlife Service’s critical habitat designation for the polar bear.  This is a pretty big deal.  The polar bear designation was the most extensive in ESA history, and also one of the most controversial. 

Despite the outcome, most of Judge Beistline’s opinion is devoted to rejecting the arguments a coalition of plaintiffs had raised against the designation.  In my opinion, all of the opinion should have been devoted to that purpose.  On the issues where the plaintiffs prevailed, there are key elements of the court’s reasoning that I find a little difficult to understand.

Evidence Supporting the Designation.  The court’s first reason for setting the designation aside was a finding that FWS failed to comply with 16 U.S.C. section 1532(5)(a)(1).  That section defines critical habitat as “the specific areas within the geographical area occupied by the species… on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.”  In ESA shorthand, those physical or biological features are referred to as “primary constituent elements,” or PCEs.  Judge Beistline’s conclusion was that FWS had failed to demonstrate that the requisite PCEs were present in all the areas designated.  That conclusion covered habitat unit 2, which contained terrestrial denning habitat, and unit 3, which contained offshore barrier islands. 

On denning habitat, the court’s reasoning contains a highly questionable step.  The four PCEs listed were suitable den sites, access to the coast, access from the coast to sea ice, and locations with a minimum of human interference.  The court conceded that FWS had demonstrated, based on a USGS study showing locations of polar bear dens, the presence of many denning sites.  But it concluded that such sites only occupied a small percentage of the designated area, and therefore were not, on their own, a sufficient basis for designating the entirety of unit 2.  And it found that “evidence is entirely lacking in support for the second and fourth features outlined by the Service”—specifically, access routes from the coast to the den sites and areas relatively free of human activity.  With respect to PCE 2, this conclusion seems odd.  The denning sites themselves provide compelling evidence that the area allows access to the coast, for polar bears are marine animals, and they had to get to their dens somehow.  And unless their access route involved surreptitious airlifts, they had to get to their dens by passing through unit 2.

On the third key feature, the court’s reasoning is equally puzzling.  Here’s the crux of it:

Even the support for the third feature is tenuous and in need of clarification: “The common feature[]    in many of the dens in these areas w[as] the presence of sea ice within 16 km (10 mi) of the coast . . . .” The Service and the record fail to explain which dens are within ten miles of the coast and how close to the coast are the dens not within ten miles.

(Footnote omitted; emphasis in original)  What, exactly, does the alleged gap in explanation have to do with the PCE in question?  FWS’s point was for an area to be suitable for polar bear denning, polar bears have to be able to get to sea ice without swimming too far from the coast.  It did not say the dens had to be within ten miles of the coast.  So the allegedly missing evidence was irrelevant to the question at issue. 

The court then turned to barrier islands, and here as well the reasoning is confusing.  Again, the court’s primary objection was that the services did not provide enough specificity when designating habitat.  “The Service does not explain,” the court wrote, “where on the islands and associated spits the polar bears move to access den sites and preferred feeding habits.”  That demand might make sense if polar bears had narrow ranges.  But they don’t; polar bears are remarkable travelers and barrier islands are hardly ever all that big. 

(This, of course, is not a problem unique to polar bears, though it is particularly salient with them.  Potentially regulated entities would always prefer small and precise critical habitat designations, but for species that travel long distances (think salmon) and have a tendency to wander, small designations make no biological sense, and the services do not have sufficient time or information for fine-grained precision.)

Responding to Alaska.  The court’s final objection also seems a bit bizarre.  According to the court, FWS failed to comply with ESA section 1533(i), which requires that FWS send a written response to a state agency when FWS issues a regulation inconsistent with that state agency’s comments or petition.  Here, FWS clearly did provide written comments responding to the state of Alaska, but it made (according to the court) two mistakes: it sent the letter to the governor, not the Alaska Department of Fish and Game, which had sent the comments, and it included some of its responsive points in the final rulemaking document rather than the letter. 

The former error, to be fair, might represent non-compliance with the literal language of the rule.  But the notion that somehow ADF&G wouldn’t have found out about the letter to Governor Parnell—both were actively involved in lobbying FWS—is just plain silly.  If ever there were a case of harmless error, this would be it.  And the latter argument finds no traction anywhere in the statutory text.  The entire statutory section in question says the following (and the regulations just parrot the statute):

If, in the case of any regulation proposed by the Secretary under the authority of this section, a State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) of this section files comments disagreeing with all or part of the proposed regulation, and the Secretary issues a final regulation which is in conflict with such comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection (b)(3) of this section, the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.

Final rules are written.  The court did not dispute FWS’s claim that the final rulemaking document contained a response to Alaska’s objections.  So where exactly is the violation?  Perhaps it is the failure to submit that justification to the state directly, but that, again, seems like a prime candidate for a harmless error argument.  Alaska’s lawyers surely were poring over every line of that final rule, and the suggestion that they were somehow harmed by the failure to respond to their every objection in a separate letter again is hard to credit.  In the court’s view, there seems to have been something wrong with providing that response concurrently with the final rule, rather than after, but again neither the statutory language nor common sense provides any basis for drawing that distinction.

So why reach these conclusions?  And why leap from these conclusions to setting aside the entire critical habitat designation (not just units 2 and 3, but also unit 1, which includes sea ice and which is much larger than units 2 and 3)?  The court’s closing words contain a clue:

In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development. The current designation went too far and was too extensive. 

Consider, for a moment, the second sentence.  To this point, all the court had purported to find was that the agency hadn’t adequately supported its designation and hadn’t followed the correct procedure.  The proper closing statement, if those conclusions were correct, would be that the agency needs to reconsider the evidence, and perhaps also gather additional evidence, and make a new decision, not that it needs to designate a smaller area.  In demanding that smaller designation, the court usurped the agency role.  But perhaps, if that statement captures the court’s core concern with the designation, usurping the agency’s authority was what the court working toward all along, and its more specific holdings were just means to that end.

-Dave Owen

Recapping Oral Argument at the Supreme Court in the Takings Case of Koontz v. St. John's

When, in the middle of just the second sentence uttered by Petitioner’s counsel, Justice Ginsburg interjected “Let’s back up…,” the parties must have known they were in for a long hour of oral argument before the U.S. Supreme Court yesterday in the takings case of Koontz v. St. John’s River Water Management District.

Two decades ago, in the matters of Nollan and Dolan, the U.S. Supreme Court declared that the government bears the burden of proving that a demand for a permanent public easement that is attached as a condition of a discretionarily-issued development permit (i.e., a permit “exaction”) bears an “essential nexus” to and is in “rough proportionality” with the adverse public impacts associated with the applied-for development to avoid having to pay compensation under the Federal Constitution’s Takings Clause. 

In most other takings contexts, the government currently is not subject to such heightened scrutiny; instead, the plaintiff bears the burden of proof in accord with an ad hoc, context-based analysis discussed in the Court’s 1978 decision in Penn Central.  As discussed in multiple posts on this blog in the past, Koontz raises two important questions regarding potential expansion of the heightened scrutiny of Nollan and Dolan:

1. whether such heightened scrutiny applies to exactions that the government proposes but the landowner refuses, such that the government denies the permit application outright; and
2. whether such heightened scrutiny applies to permit conditions beyond those that require public occupation of private lands (such as demands for conservation restrictions or the expenditure of money for mitigating measures).

At oral argument, the first issue almost completely overshadowed the second.  According to the unofficial transcript, the Justices—lead by Justices Ginsburg, Sotomayor, Breyer, and, somewhat surprisingly given his pro-property-rights stance in many prior takings cases, Scalia—peppered the landowner’s attorney, Paul Beard of the Pacific Legal Foundation, with questions regarding how his client conceivably could maintain an exaction takings claim when the water district never ultimately exacted anything.  Echoing a puzzling assertion made in Petitioner’s reply brief, Mr. Beard’s responses seemed to concede that his client did not have a federal takings claim for which he was entitled to compensation, but that, instead, his client held a state statutory right to payment because the water district proposed an “unconstitutional condition” under Nollan and Dolan. 

Chief Justice Roberts and Justice Alito dominated the questioning of the water district’s counsel, Paul Wolfson, and appeared exacerbated by Mr. Wolfson’s argument that the property owner must accept a conditional permit to be able to challenge the condition as violative of Nollan and Dolan.

Several things stood out at yesterday’s argument. I will mention four here. 

First, the argument predictably exposed deep disagreement among the Justices regarding the applicability of the Penn Central framework in permitting cases.  What is interesting, however, is that, with respect to Penn Central, Justice Breyer’s position might be considered to result in  more successful takings claims than that of Justice Scalia.  Justice Breyer suggested that the denial of a permit following a landowner’s refusal to accede to a permit condition that is not imposed on “anybody else” and “bears no relation” to the development could amount to a taking under Penn Central. Justice Scalia, however, intimated that such a condition is not relevant to a Penn Central claim, for a Penn Central claim can only succeed if the denial of a permit for some legitimate reason (here, protecting wetlands) results in a near total diminution in the value of the claimant’s property.  Regardless of this disagreement, though, both of these Justices expressed skepticism with the Petitioner’s allegation that Nollan and Dolan apply to conditions that are proposed but never issued because the permit is denied.

Second, several members of the Court posed outlandishly demanding hypothetical development permit conditions (e.g., permits conditioned on the applicant paying “one million dollars,” “building a football stadium,” or handing over “the moon”).  Yet these hypotheticals came off as so far removed from the facts of this case and, more generally, the day-to-day workings of modern permitting programs that their import moving forward lies in some doubt.  On the agreed-upon Koontz facts, the landowner admitted that the wetlands destruction that would result from his development would need to be mitigated under Florida law, yet he rejected half-a-dozen mitigation options offered by the water district and failed to pose any alternatives of his own beyond agreeing not to fill the wetlands that he did not ask for permission to fill.  As Justice Sotomayor remarked, “From the record it’s very clear that a conservation offer is not considered mitigation because there’s still a net loss of wetlands.”

Perhaps more importantly, though, these rather bizarre hypotheticals served to draw a distinction between viewing the Takings Clause as affording (a) some type of a punitive damage remedy for extortionate government conduct, and (b) as the Court unanimously concluded in the 2005 Lingle case, just compensation for what otherwise is a perfectly proper regulatory act. 

Third, the United States appeared as amicus curia in support of the water district.  However, Deputy Solicitor General Edwin Kneedler seemed to offer a significant concession to the landowner.  Mr. Kneedler suggested that a proposed exaction would trigger Nollan and Dolan scrutiny if the permit denial explicitly mentions the applicant’s refusal of that condition as a justification for the denial.  Even if the denial did explicitly mention the applicant’s refusal of one particular condition (the parties disputed this fact, opening the door to the possibility—however unlikely—that the case will be dismissed as improvidently granted), the water district likely would disagree that anything was taken.  It would seem that in such an instance the denial occurred not because of the refusal of that proposed condition but rather because of the wetland impacts of the proposed development.

Fourth, as I advocated on this blog on Monday, at least several Justices took a significant step back from the assertion in the Court’s unanimous December 2012 decision in Arkansas Game that “the sky [will] not fall” on government regulators with continued expansion of takings protections. For instance, Justice Sotomayor noted, “I see an enormous flood gate here [if we conclude that proposed exactions are subject to Nollan and Dolan scrutiny], … in which we [would be] sending a signal that perhaps States should be more quiet than engaging.”

***

On the whole, I see the day as a moderate victory for the water district, particularly in light of Justice Scalia’s apparent aversion to the landowner’s position.  But while Lyle Denniston at SCOTUSblog found the argument heavily tilted in the water district’s favor, I am more cautious about whether the argument sheds great light on how the Court ultimately will decide the case.   Justices Ginsburg and Sotomayor came across as the most sympathetic to the water district’s position, while Chief Justice Roberts and Justice Alito seem most likely to align with the landowner.  Yet Justice Thomas characteristically did not ask any questions, and the other Justices’ questioning did not in my estimation definitively tip their hands. 

On the first issue before the Court, the argument offered the possibility of a highly fractured decision, not only for the reasons discussed above but also because several Justices seemed open to reviewing the type of government action posed here under the Equal Protection or Due Process Clauses, as opposed to the Takings Clause.  If the government prevails on the first issue, it is not evident that the Court even will reach the second, which, as noted at the top of this post, received scant attention at the argument.

The only thing that seems absolutely clear from yesterday’s oral argument in Koontz is that both property rights advocates and proponents of reasonable land use regulation will be on the edge of their seats awaiting the release of the Court’s decision this spring.  A decision is expected by June.  Please stay tuned to the Environmental Law Professors Blog for updates and analysis on this important takings case.

-Tim Mulvaney ([email protected])

Energy Policy in an Age of Economic Crisis

The Obama administration again managed to include some important incentives for renewable energy and energy efficiency in a law that was aimed primarily at averting economic crisis.  As you may recall, the American Recovery and Reinvestment Act of 2009 (ARRA, aka the Stimulus Act) provided $90 billion worth in grants, tax incentives, and loan guarantees, for renewables, efficiency and related research.  As I've remarked, I think it was a pretty good showing in a very unsupportive political and economic environment.

And the American Taxpayer Relief Act of 2012 (ATRA, aka the law that averted the fiscal cliff) continues this success.  Section 407 extended the Production Tax Credit (PTC) for one year, through December 31, 2013.  The PTC provides a ten-year tax credit of 2.2 cents per kilowatt-hour for electricity produced and sold by wind, closed-loop biomass and geothermal energy installations. It provides an incentive of half that amount for open-loop biomass, landfill gas, municipal solid waste, qualified hydroelectric, and marine and hydrokinetic technologies. Also, this new date is friendlier to producers because it is now the deadline by which construction has to begin rather than the deadline by which it has to be “placed in service.”  Some of the other notable “energy tax extenders” in the new law include:
• Sec. 401. Extension of credit for energy-efficient existing homes.
• Sec. 402. Extension of credit for alternative fuel vehicle refueling property.
• Sec. 403. Extension of credit for 2- or 3-wheeled plug-in electric vehicles.
• Sec. 405. Extension of incentives for biodiesel and renewable diesel.
• Sec. 408. Extension of credit for energy-efficient new homes.
• Sec. 409. Extension of credit for energy-efficient appliances.

The new law’s extension of the PTC was a particularly significant achievement because the PTC has been vital to wind energy investment and was in the crosshairs of Republicans just a few short months ago.  The figure below shows how critical the PTC is to wind energy investment (source: LBL, 2011 Wind Technologies Market Report, p.3).   Go ahead and guess which years the PTC wasn’t available because it had expired (answer: 2000, 2002 and 2004).  With the threatened expiration of the PTC, 2012 looks to have been a good year for wind energy.  As of September, 4.7 GW had been installed in 2012, and another 8.4 GW were under construction (source: American Wind Energy Association, Industry Statistics). 

- Lesley McAllister

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

* A new federal report says it is "unambiguous" that human-induced climate change is already changing how we live

* A debate is brewing over U.S. natural gas exports

* The Second Circuit ruled that the NRC must allow for more public participation in decisions about fire safety at Indian Point

* Meanwhile, staffing issues at the NRC remain under congressional scrutiny

* Whales trapped under Canadian sea ice freed themselves

* Air quality is slowing getting better in Mexico City

 

Takings Case Set for Oral Argument at the SCOTUS on January 15th

The U.S. Supreme Court is scheduled to hear oral argument in the exaction takings case of Koontz v. St. John’s River Water Management District this Tuesday, January 15, 2013.  Koontz raises two important questions: first, whether the Nollan/Dolan “nexus” and “proportionality” tests apply to exactions beyond those that require public occupation of private lands; and, second—and more significantly—whether those tests are applicable at the point in time when an exaction is merely proposed.  I outlined these issues in an earlier post here, and the Koontz briefs are available here.  In this post, I will set out several rather peculiar passages in the Court’s first takings opinion of the current term, the 8-0 decision in Arkansas Game & Fish Commission v. U.S., and suggest that at least some of these passages could prove influential in Koontz and that all of them could affect the development of takings jurisprudence more generally moving forward.

***

The holding in Arkansas Game is on its face a narrow one: the Justices unanimously agreed only that recurrent flooding over a temporary period resulting from the government’s operation of a dam is not categorically immune from takings liability.  However, dictum throughout the opinion may leave some scratching their heads. 

First, the Arkansas Game Court in several instances spoke as if the government’s motivations always have played an obvious and primary role in adjudicating regulatory takings disputes. However, one could argue that the role of governmental motivations is not as clear as the Court makes it out to be.  In a recent article, noted takings expert Robert Meltz identifies a series of lower court cases debating whether and in what instances takings should be considered strict liability offenses.  Allegations surrounding the Water Management District’s motivations figure prominently in the takings claim at issue in Koontz.  It remains to be seen whether the Koontz Court will offer a more thorough assessment of the role of governmental motivations in takings analyses than that set out in Arkansas Game.

Second, in refusing to acknowledge an exception to takings liability for temporary flooding, the Arkansas Game Court excused a “passing reference to permanence” in one of its earlier opinions because of the “time factor” — the Court explained that the earlier matter “was decided… in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings.” 

In its modern takings jurisprudence, the Court has not always so swiftly brushed aside its old cases because of the very fact that those cases were decided in a bygone era—say, an era well before the Court homed in on the public’s interest in preserving the environment.  In this sense, one theoretically could read Arkansas Game as having implicitly opened the door to a revisionist interpretation of the Takings Clause akin to the re-interpretation of the Due Process Clause that occurred in the post-Lochner era.  As I have argued elsewhere, Nollan and Dolan in at least some instances require scrutinizing the means and ends of a regulatory decision well beyond the traditional deference afforded to such acts under modern substantive due process jurisprudence.  However unlikely, it is at least within the realm of possibility that at least some members of the Court, in the course of reviewing the Koontz case, will reconsider the appropriateness of maintaining any place for the Nollan and Dolan tests within the larger picture of takings law.

Third, the Arkansas Game Court restated that Penn Central’s “situation-specific” inquiry is the driving force in most regulatory takings cases.  However, it discussed what have become known as the Penn Central “factors” in a slightly different way than it has in the past.  In Penn Central, the Court noted the importance of considering: (1) “the economic impact of the regulation on the claimant;” (2) “the degree to which the regulation has interfered with distinct investment-backed expectations;” and (3) the “character of the governmental action.”  Arkansas Game seemingly elicited not three but five factors, only the first of which— (1) investment-backed expectations —directly mirrors a factor noted in Penn Central.  The other factors mentioned in Arkansas Game include: (2) the “severity of the interference” (where a parenthetical pointed not to the economic interference but rather the repetitive nature of the government action); (3) the “degree to which the invasion is intended or is the foreseeable result of authorized government action” (a factor related to the “motivations” issue discussed above); (4) the duration of the regulatory restriction; and (5) “the character of the land at issue.” 

While “factors” (2) through (5) arguably reflect principles mentioned in prior takings cases, they had not been stated in these terms or in such a systematic manner until Arkansas Game.  Of these factors, the development of the “character of the land” factor may be particularly interesting to watch.  If the denial of the permit application in Koontz is subject to a Penn Central (as opposed to a Nollan/Dolan) analysis, this “character of the land” factor could pose a new, difficult hurdle for the takings claimant on top of the existing hurdles that landowners ordinarily face in Penn Central cases.  Nearly Koontz’s entire property is considered wetlands, which lie within the Riparian Habitat Protection Zone of the Econlockhatchee River Hydrologic Basin.  The Florida legislature designated this “zone” to protect the “abundance, food sources, or habitat of aquatic or wetland dependent species.”

Fourth, the Arkansas Game Court declared itself “not equipped to address” the seemingly foundational question of whether the Arkansas Game & Fish Commission possesses an interest in a certain water flow that, in accord with Arkansas law, should be considered “property” for constitutional takings purposes.  It will be interesting to see how the Court addresses this threshold question in Koontz, for where a proposed exaction is refused or withdrawn, it is not clear what interest has been “taken” from the applicant that can be protected by the Takings Clause. 

Fifth, the Arkansas Game Court chastised the federal government for espousing “the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest.”  Rejecting a position staked most prominently by Justice Blackmun in prior takings cases, the Court asserted that “the sky [will] not fall” if governmental entities are exposed to temporary-flooding takings claims.  It is not evident how high a bar the Court has set with this “sky falling” test.  Regardless, it seems the Court significantly understated the impact of its takings jurisprudence on the efforts of government officials charged with protecting the public health, safety, and the environment through the regulation of land uses. 

In Koontz, an amicus brief filed on behalf of the National Governors Association, et al., in support of the Water Management District stresses this point with particular vigor from the perspective of local governments.  Noting the inability to obtain takings insurance, the difficulty for general local counsel (let alone experienced takings litigators) to accurately predict how takings cases will be decided, and the fact that even immediate repeal of  a regulation following an adverse judgment can leave a community liable for multi-million-dollar temporary takings payments, the brief explains that “[a]n actual takings award, even for a mere temporary taking, can come close to bankrupting a small town and imposes burdensome costs on all but the very largest jurisdictions.”  It is conceivable that such sentiments may prompt the Koontz Court to revisit and heed Justice Blackmun’s guidance on the great chilling effect that continued expansion of takings doctrine can produce.

Please stay tuned to the Environmental Law Professors Blog for updates as Koontz heads to the U.S. Supreme Court for oral argument this Tuesday, January 15, 2013.

-Tim Mulvaney ([email protected])

An Important Stormwater Case (and it's not the one you're thinking of)

Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council.  The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia.  On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order.

Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop “total maximum daily loads,” or TMDLS, for those waterways.  In essence, TMDLs are pollution budgets.  They usually identify which pollutants are causing impairment, and they then specify how much of a “load” of each offending pollutant the waterway could handle without being impaired.  What happens next is largely up to the states.  While EPA must step in to prepare a TMDL if the state fails to do so, states have broad discretion to decide whether and how to translate the TMDL into controls on individual sources.

The Accotink Creek TMDL used an innovative approach.  A traditional TMDL would specify a daily load for each offending pollutant, and would express that load as a mass.  For waterways impaired by urban stormwater runoff, however, that traditional approach doesn’t work very well, largely because saying exactly how much mass of each pollutant a waterway can accommodate each day is often quite difficult.  Watershed scientists often have a much better sense of how much stormwater runoff a waterway can accommodate without being impaired, or even how much impervious cover in a watershed will trigger impairment.  Consequently, the Accotink TMDL and several recent TMDLs developed in other states have used proxy measures of pollutant loading.  For Accotink Creek, the proxy was the volume of stormwater runoff, and several TMDLs in Vermont have used similar approaches.  In Maine and Connecticut, the proxy of choice has been impervious cover. 

For scientific and policy reasons, this proxy approach makes sense (for more detailed discussion of these issues, see here).  Scientifically, proxy TMDLs are often more defensible than traditional TMDLs.  On the policy front, they focus attention on things that civil engineers and planners are accustomed to thinking about.  A TMDL that specifies an allowable mass of particular pollutants may not mean much to the civil engineers who plan infrastructure or to the planners who guide development.  But those engineers are accustomed to thinking about stormwater runoff volume because that volume is directly connected to flooding, and planners are equally accustomed to thinking of spatial features like impervious cover.  A proxy TMDL therefore expresses its pollution budget in terms local governments can actually work with.  (Of course, that may be exactly what Fairfax County and the Virginia Attorney General’s office didn’t like about this TMDL; they may have preferred something more opaque and inconsequential.)

But there’s a potential legal problem.  Clean Water Act section 303 requires that TMDLs identify a daily load for each individual pollutant.  Stormwater carries pollutants, but it doesn’t itself meet the Clean Water Act’s definition of “pollutant.”  And impervious cover clearly is not a pollutant, though again it generates and conveys pollutants in great quantities.  Consequently, proxy TMDLs have always occupied a zone of legal uncertainty.

In Virginia Department of Transportation, that uncertainty came to a head.  In an opinion that seems to exude disdain for EPA’s efforts (EPA was the defendant because it had drafted the TMDL after Virginia failed to do so), the court held that the Clean Water Act unambiguously precluded EPA’s proxy approach.  Piling on, it added that even if the statute were unclear, EPA’s interpretation would be unreasonable, for it would expand the scope of EPA’s regulatory efforts.  Under the court’s reasoning, almost any proxy TMDL would appear to be invalid.

The lasting impacts of the court’s decision are hard to predict.  I think EPA’s arguments were much stronger than the court acknowledged, particularly because the Accotink Creek TMDL really just used stormwater runoff as the measure of loading for a particular offending pollutant (sediment).  That’s different, and in my view more clearly defensible, than using stormwater runoff as a proxy for a range of stressors, some of which might not meet the Clean Water Act’s definition of “pollutants.” And even for that latter type of TMDL, I think EPA or a state would have strong defenses.   On appeal, if there is an appeal, those defenses may yet prevail.  And, of course, even if it stands, a federal district court decision has only limited reach unless other courts or EPA adopt its reasoning.

Nevertheless, the decision highlights a problem with the Clean Water Act.  In a more reasonable world, there would be no legal question about these proxy TMDLs.  They’re a very sensible response to a very challenging problem.  And so, someday when constructive amendments to federal environmental laws are again a possibility, adjusting Clean Water Act section 303(d) to allow TMDL writers a little more flexibility would make quite a lot of sense.

-Dave Owen

Image from the website of the Friends of Accotink Creek, at http://www.accotink.org/DMMainStem14WalkMay08.htm.

The Long Goodbye: On Seeing the Sundarban Islands

Cross posted from CPRBlog: http://www.progressivereform.org/CPRBlog.cfm?idBlog=0438BAB8-B2E5-8BA7-5690FF9F45E43C30

 

The Ganges River begins at the foot of the Gangotri Glacier in the Himalayas and culminates at the Sundarbans Delta, a massive sprawl of swamps, lakes, and scores of islands. (Find an earlier post on the Ganges here.) It’s the largest river delta in the world—home to endangered Bengal tigers, miles of mangroves, and nearly 12 million people (4.5 million on the Indian side and 7.5 million on the Bangladeshi side).

A student of the Mississippi River Delta, I had long wanted to visit the Sundarban Islands. So after giving a series of lectures in Kolkata, I accepted an invitation to visit some of the islands on a medical boat, operated by the Southern Health Improvement Samity, an organization in West Bengal that delivers health-care services to island villagers.

The experience was one of the high points of my semester sabbatical, which has now drawn to a close. The people were lovely. I chatted with a group of young girls about their new school building, which doubles as a safe house in times of flood. I learned about off-the-grid power from a farmer who had recently installed solar panels on the thatch of his mud hut. A local activist taught me about a program that employs women to grow mangrove saplings and replant them on fragile shores. And the lush forests were idyllic (once you looked past the plastic netting designed to keep the tigers in).

Still, it was hard to ignore that these wonderful people and beautiful surroundings are slowly being swallowed by rising seas—just one of the many casualties of climate change. Some islands have already slipped below the water line. In the last decade thousands of villagers have been displaced. The consequences will unfold over decades.

It will be a long goodbye.

And not the only one. So many places, from Micronesia to Miami, are at risk. Part of letting go will involve complex logistics: identifying the places and species to abandon, orchestrating our retreats, planning the resettlement. The other part will be the heartbreak.

How will we deal with the pain of saying goodbye? Will we behave like the orphaned children in psychological studies, the ones who refuse to attach to anyone nice for fear of being abandoned again? Will we stop caring about our favorite coastlines, our storied cities, the world’s cultures, because the possibility of losing them (and knowing we’re to blame) is just too much for us to stomach?

I hope not. If we give up now, we’ll lose what we might have saved with reasonable efforts. And we will have surrendered the reward of knowing and loving the things that matter.

In times like these, we need a shot of Rabindranath Tagore, the Bengali poet and Nobel laureate:

Let me not pray to be sheltered from dangers,
but to be fearless in facing them.

Let me not beg for the stilling of my pain, but
for the heart to conquer it.

 
Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans. Bio.

 

Regulatory Choice and Managed Retreat

As readers gear up for the new semester, I thought I would share a wonderful teaching resource on regulatory choice and managed retreat from sea level rise and FEMA-designated special flood hazard areas (SFHAs). My guess is that the below chart will be highly useful for for those readers who will soon be teaching an Environmental Law survey course with a component on regulatory choice, an Ocean & Coastal Law course with a component on sea level rise and adaptation, a climate change seminar, or an undergraduate course on environmental policy that covers any or all of those areas. I'll explain a bit more below.

The chart was presented by Caroline Karp, a long-time and long-loved senior lecturer in the Environmental Studies department at Brown University, at last fall's 9th Marine Law Symposium at Roger Williams. It addresses the range of options available to governments and NGOs to promote managed retreat:   

As you can see, the chart offers a number of different options moving along the scale from the least intrusive to existing property rights (labeling evacuation routes) to the most intrusive (acquiring property though eminent domain), with suggestions along the way for information-based, tax-and-subsidy-based, market-based, and command-and-control approaches. This articulation corresponds nicely with the approach to regulatory choice adopted by many environmental law casebooks and proposes a number of workable options that can promote a rich policy-oriented discussion. The suggestion that decision-makers may move in one way or another along the scale depending on the degree and type of risk perception and concerns about equity and efficiency adds a layer of complexity that can trigger any number of discussions, including a discussion about what values and values systems inform students' own preferences. If you decide to use the slide in your classroom, I'd love to hear what you do with it and how it turns out.  

Professor Karp's entire PowerPoint, which includes a number of other slides on property law, takings law, and federalism, is available here.

-- Michael Burger