Saturday, May 23, 2015

The Waters of the United States Rule, Congress, and "Washington bureaucrats"

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in this morning's New York Times):

"This rule is not designed to protect the traditional waters of the United States.  It is designed to expand the power of Washington bureaucrats."

This is a familiar refrain.  Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act.  On environmental issues, this kind of rhetoric is particularly prevalent.  And in this circumstance--and, I suspect, many others--it's just not true.

For a recent paper (forthcoming in the UCLA Law Review), I spent many hours researching the practices and bureaucratic organization of the Army Corps, the agency with primary responsibility for implementing section 404 of the Clean Water Act (the section 404 permitting program, which governs the filling of "waters of the United States," is the regulatory program likely to be most impacted by the rule).  The findings of that research are very difficult to reconcile with the claim that this rule would just empower bureaucrats in Washington.  For example:

- Of the 1,200 to 1,300 Army Corps staff in the agency's regulatory program, ten are based in Washington D.C.  Of those ten, two are on rotation from an office elsewhere in the country.  The rest of the regulatory program staff are based in division, district, and field offices across the nation.  And that's where the real power lies.  As one of the few headquarters staffers explained to me, district commanders "“are the ones who make the decision, and we reinforce that every chance we get.”

- Many of those non-DC staff were born and raised in the areas where they presently work.  Others have moved around, but staff told me that having some staff with roots in the areas where they work did matter.  As one said, "you know the culture, you were raised here and know the challenges people are having and you want to help them as much as you can." 

- Even most of the DC staff have extensive field experience.  As one district chief explained to me:

"Over the years, the people who have gotten in managerial positions have gotten there through the ranks.  So… they know the real world, and that is even consistent with the people in headquarters.  Most of those people have come from the district offices [and] were at one point a project manager processing permit applications."

- That geographic distribution of personnel matters to the implementation of the program.  It lets non-DC staff tailor the program to local environmental conditions.  It enables extensive communication and coordination with state agencies.  And it allows for extensive, often face-to-face contact with the people who are regulated by, and who benefit from, the program.  The DC office isn't irrelevant, of course, and Corps staff repeatedly told me about efforts to ensure consistency across the nation.  But I do not think anyone who takes a close look at the program could say, with a straight face, that this new rule is just about empowering Washington bureaucrats.

And therein lies the larger motivation for the research project.  Senator Barrasso is hardly alone in equating federal law with Washington DC bureaucracy.  Other politicians say similar things all the time, as do legal academics.  And while Senator Barrasso is unlikely to abandon a resonant political line just because it rests on dubious factual premises, those of us who profess to speak accurately ought to be more careful.  In some federal programs, Washington bureaucrats play dominating roles, and in a few, all the bureaucrats really are in Washington.  But in many contexts, federal offices spread across the country really do matter, and we ought to pay attention to what they do.  The waters of the United States controversy is just one of many in which that attention would be well justified.

- Dave Owen


May 23, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

Legal Services and the Farm

BerriesIn recent years, Maine, like many other states, has seen a resurgence of interest in farming.  A new generation of farmers is starting up small, diversified farms, and they are supplying a growing number of farmers’ markets and farm-to-table restaurants.  In many ways, it’s a wonderful trend.  It brings young people and new economic activity to rural areas that have faced declining economies, shrinking populations, and aging populations.  It gives urban dwellers access to produce grown without pesticides and meat produced without massive feedlots.  And the trend is boosting a food scene that has turned Maine into even more of a tourist destination.

But getting started in farming is hard work, and just one of the many things that makes it hard is the tendency for legal issues to arise.  Negotiating and contracting for land access, navigating tort liability and employment law, creating business structures, and navigating employment law requirements are just a few of the many issues that farmers often face.  For lawyers, that might sound like an exciting opportunity, and increasing numbers of our students now express interest in legal issues associated with food.  But farmers—particularly new ones—often can’t afford lawyers, and even if they could, hiring lawyers just isn’t part of traditional farming culture.  So a lot of legal needs are going unmet.

With the CongresswomanThis past semester, several of our students got involved in an innovative effort to respond to that problem.  The Conservation Law Foundation, a regional environmental group, has launched a “Legal Service Food Hub” initiative.  The initiative is designed to match small-scale farmers and food businesses with pro bono attorneys, and to provide those attorneys with training on the distinctive issues associated with representing this new kind of client.  As part of these efforts, four Maine Law students, working with CLF attorney Ben Tettlebaum, spent the past semester creating a guidebook on some of the key legal issues that confront farmers in Maine (the guidebook is modeled on a similar book, jointly created by CLF and Harvard Law School, for attorneys in Massachusetts).  Last Monday, CLF officially launched its Maine hub, and several of our students (here pictured with Congresswoman and farmer Chellie Pingree) spoke at the event.

It’s an exciting initiative, and I hope and expect it will continue.  It's also a model I think would work well in other places.  One of the concerns people often raise about the rise of sustainable food law is that it's unclear who will pay for it.  But there's a lot of meaningful legal work to be done for people who can't afford lawyers, and if that work offers law students and lawyers a chance to learn about representing small businesses as well as giving back to their communities, so much the better.

- Dave Owen

May 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 2, 2015

Pace Future Environmental Law Professors' conference

Last year, Pace started a new conference designed to help aspiring environmental law professors prepare for the job market.  This year, the Pace faculty are doing it again.  The announcement is below.

If you're seriously thinking about going on the job market, this is a great opportunity.  Attending certainly doesn't guarantee you a job; the market was brutal last year.  And, unfortunately, that market is likely to stay tough in the years to come.  But three participants did get hired, with others still in the mix, and I suspect they'd say the conference gave them a leg up in their preparations.

- Dave Owen

Friday, September 18, 2015
Pace Law School, White Plains, New York

Designed for visiting assistant professors, fellows, researchers, law clerks, practitioners and others who are, or plan to go on, the academic teaching market in the areas of environmental law, natural resources law, food and agricultural law, animal law, energy law, land use planning, or ocean and coastal resources law.

  • Receive advice on the environmental law teaching market
  • Obtain an insider’s view of the appointments process from faculty with extensive hiring experience
  • Learn about the history and future of environmental law in law schools
  • Participate in a mock AALS interview and gain feedback from environmental law professors
  • Present your work to future colleagues in the environmental law academy
  • Hear a Keynote Address by Yale Law Professor Douglas Kysar about environmental legal scholarship

Register by clicking HERE. There is no cost to register. Participants are responsible for their own travel and lodging.

Preliminary Schedule
9:00 Introductory remarks by Professor Jason Czarnezki (Pace) and Continental Breakfast
9:30 Panel discussion with Professors Mary Jane Angelo (Florida),Kevin Leske (Barry), and Margot Pollans (Pace) —“How To Be Successful on the Environmental Law Professor Job Market”
10:45 Break
11:00 Mock interviews
12:00 Keynote lunch address by Professor Douglas Kysar (Yale)
Afternoon Job talk presentations with feedback provided (Selected participants will be asked to present their job talks.)

May 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

ABA Student Writing Competition deadline extended

Several weeks ago, we posted about the ABA ADR Committee's student writing competition.  The deadline for that competition has been extended to May 27, so if you're thinking about submitting something, you still have a chance.  Details here.

May 1, 2015 | Permalink | TrackBack (0)