Wednesday, January 21, 2015
I’ve just returned from Israel, where I presented a draft paper to an environmental workshop hosted by David Schorr and Issi Rosen-Svi at the University of Tel Aviv. The trip was short, but between my interactions at the university and some quality time with a very good traveling companion—Alon Tal’s book Pollution in a Promised Land: An Environmental History of Israel—I had a chance to form a few preliminary thoughts about Israeli environmental politics and law.
One reaction is that environmental politics in any developed country can have a certain sameness. The basic clash between development and environmental protection, the constant challenges of creating effective environmental agencies, and the interplay between advocacy groups, government, and industry are just as much a part of the Israeli story as they are part of the American one. But there are also ways in which Israeli environmental politics struck me as quite distinctive.
The most striking differences involves the intertwinement between environmental politics and the Arab-Israeli conflict. In that conflict, one of the Zionists’ central strategies, which they adopted well before Israel became a nation, has been to assert physical possession of space. Sometimes that has meant building settlements, sometimes watering farms in the Negev Desert, sometimes establishing military reserves, and sometimes buying land and planting forests, but a common theme has been to take territory by physically transforming it. That creates a potentially enormous challenge for an environmental movement, for much of traditional environmentalism has involved leaving spaces alone. Indeed, in the United States, environmentalists have succeeded in developing a patriotic narrative of non-development, arguing, in a tradition that dates back the Transcendentalists and Frederick Law Olmstead, that it affirms and strengthens our national character. In Israel, a sense of connection to the land also is a key element of the national character, but even committed environmentalists like Tal agree that the American-style wilderness ideal has little place. Both Issi and David agreed, as did Tal, that open space preservation has become the key environmental issue in Israel, and Israel’s history and current politics would seem to make that issue particularly challenging.
Yet two other details of Israeli environmental politics jumped out at me. First, as I walked around Tel Aviv, I did not see any single-family homes. I asked Issi and David about this, and they confirmed what I suspected: while some Israelis in more rural areas live in single-family homes, the norm is a high-rise apartment. That is a much more efficient use of space than is typical among Americans. And, second, Israel still has wolves (and some other pretty charismatic megafauna). Wolves, to Americans, are one of the ultimate symbols of wildness, and even some states that are pretty wild, like my home state of Maine, don’t have any. Perhaps that little fact doesn’t indicate too much—after all, one would expect to find a lot of biodiversity at the crossroads between Africa, Asia, and Europe—but still, it struck me as a hopeful little reminder of the resilience of nature.
- Dave Owen
Friday, January 16, 2015
Fifth Circuit Holds Designer and Supplier of Dry Cleaning System Is Not Liable under CERCLA as an Arranger
On January 14, a panel of the Fifth Circuit (King, Jolly, Costa) issued a decision in Vine Street LLC v. Borg Warner Corporation. A subsidiary of Borg Warner sold dry cleaning machines to a dry cleaning business in Tyler, Texas, and assisted with the design of the building housing the business, installed the machines, tested the machines, and initially assisted customers with operating the machines. The Borg Warner subsidiary also designed the system that connected the dry cleaning machines to the sewer system, including equipment that attempted to separate out perchloroethylene (PERC) for reuse. Environmental contamination occurred when PERC escaped from the sewer system into the ground. The district court held Borg Warner 75% responsible under CERCLA for the costs of cleaning up the contamination.
On appeal, the issue was whether Borg Warner is liable as an arranger under CERCLA § 107(a)(3)—that is, whether Borg Warner “arranged for disposal” of a hazardous substance. Applying Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009), the Fifth Circuit held that Borg Warner had not intentionally disposed of any PERC—indeed, Borg Warner designed its machines and drain system to prevent PERC from reaching the sewer system—and therefore was not liable as an arranger.
Wednesday, January 14, 2015
Back on June 4, 2014, a panel of the Fifth Circuit (King, Benavides, Dennis) held that BP and Anadarko, co-owners of the Macondo Well involved in the Deepwater Horizon disaster of 2010, are strictly liable for fines under Clean Water Act Section 311. In re Deepwater Horizon, 753 F.3d 570 (5th Cir. 2014). The panel subsequently issued a short per curiam supplemental decision addressing arguments raised in BP’s and Andarko’s rehearing petitions. In re Deepwater Horizon, 772 F.3d 350 (5th Cir. 2014).
On January 9, the Fifth Circuit, by a vote of 7-6, narrowly voted against granting rehearing en banc. Judge Clement, joined by Judges Jolly, Jones, Owen, Elrod, and Southwick, wrote an opinion dissenting from the denial of rehearing en banc. The dissent opined (1) that the panel’s “loss of controlled confinement” test is inconsistent with the text of the Clean Water Act, which imposes liability based on a “discharge”; (2) that at the very least the Clean Water Act is ambiguous, and ambiguities in civil-penalty statutes should be resolved in favor of defendants; (3) that the panel misapplied its “loss of controlled confinement” test because hydrocarbons were never confined in the well; and (4) that the panel’s supplemental opinion changed its original holding, creating lingering uncertainty in the precedent.
Saturday, January 10, 2015
Arizona State University Law School is planning a new annual law professor conference focused on sustainability-related law. Here's a quick blurb:
The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.
This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:
- Climate Change Law
- Energy Law
- Water Law
- Environmental Law
- Natural Resources Law
- Land Use and Zoning Law
- Agricultural and Food Law
- Disaster Law
The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.
Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.
Arizona State University will provide hotel lodging and a $500 travel stipend for all panelists and presenters.
ASU's conference page also includes a link to a site with more information about how to submit an abstract.