Environmental Law Prof Blog

Sports Gambling, the "Throw Away Culture," and the Environment - the Common Denominator

Scott Van Pelt, a popular media figure at ESPN, recently criticized the growth of daily fantasy football sites like FanDuel and DraftKings, citing their exploitative nature and capitalizing on human greed. I'm fairly against the grain when it comes to the issue of gambling, and definitely believe it plays into the baser instincts of human nature. I apply that sentiment to all forms of gambling, from sports betting, to casinos, state lotteries, and other forms. While it undoubtedly makes some people very wealthy, and particularly the entrepreneurs engaged in the business side of gambling, it's exploitative nature makes the poor poorer, even if there are those who can engage in it responsibly just for fun (if increasing the likelihood of losing money that you already have in hand is your idea of fun).

It strikes me, however, that pretty much any business enterprise is on a spectrum that spans human need on one end and human greed on the other. The difficulty is when the line is crossed between need and greed. Want is somewhere in the middle of the spectrum, of course, and one certainly can want and obtain things that they may not technically need without being motivated by greed. Nonetheless, querying why we might publicly criticize on national TV something like sports gambling on the one hand, but not "greedy" consumption patterns on the other is curious to me.

I am not a business expert by any means, but I do have a basic understanding of the many different ways that one can run a business enterprise. Some companies no doubt seek to make high-quality products that will last a long time without needing replacement. Other companies have incorporated sustainability into their business models, because they recognize the impacts of consumption on the environment and believe it is good business--especially if they want to be in business for the long term--to reduce the negative impacts of consumption. Many business models, however, are aimed at feeding a continual stream of consumption, purposefully encouraging the replacement of the products that we have. Consider the giggles one gets walking into the AT&T store with an iPhone 4, when the current model is the iPhone 6S. This happened to my wife just the other day. "Get a new phone every year" is the new plan that is going around now. A lot of energy and other resources go into the production of billions of cell phones, not to mention byproducts resulting from the process, such as chemicals and other components entering the general waste stream. But the need, here most likely greed, to get the newest and best thing is almost part of the fabric of American culture. This recognition is nothing new--consider the well-worn quote from economist Victor Lebow's 1955 article in the Journal of Retailing:

"Our enormously productive economy demands that we make consumption our way of life, that we convert the buying and use of goods into rituals, that we seek our spiritual satisfaction and our ego satisfaction in consumption. We need things consumed, burned up, worn out, replaced and discarded at an ever-increasing rate."

A major irony of Pope Francis's recent visit (as pointed out by Stephen Colbert), is that his criticism of our "throw away culture" was met with an amazing amount of American "entrepreneurship"--Pope Francis merchandise was everywhere during the visit, in the form of Pope medallions, pullovers, coffee mugs, Pope Francis cologne (you read that right), hats, life-size cardboard cutouts, and even gold rimmed porcelain plates inscribed with a tweet from Pope Francis.

Of course we waste copious amounts of food, which is a basic necessity, to the tune of $162 billion annually. But we also commoditize water from melting polar ice caps; increasingly consume meat, and particularly beef, that threatens the global climate and is accelerating biodiversity loss; and witness hermit crabs, at risk of losing their shells from ocean acidification, make new homes in tootpaste caps, while 90% of seabirds have plastic in their guts as a result of our plastic throwaway culture. As Jason Clay has pointed out, the world is currently consuming 1 1/3 earths worth of resources annually, and one American consumes as much as 43 Africans. Clay also projects that even as populations continue to climb, increased consumption patterns will require that we triple the provision of goods and services over the next 50 years--which will be impossible to do without wrecking the planet unless society makes a dramatic shift toward sustainability. Consider these images, visually demonstrating the consumptive nature of our culture, part out of basic need and part out of greed.

In the end, we all want things cheap, new, and often. Sometimes greed is the motivator, sometimes it is genuine need. But while I believe high profile analysts are right to point out the greed that drives sports gambling and threatens the integrity of sport, we would do well to place more pressure on harmful, greed-driven consumption patterns that continue to threaten the environment we depend upon for basic needs. Unless we do so, we are taking the riskiest gamble of all.

- Blake Hudson

More Irony, More Complexity in Sixth Circuit Clean Water Rule Decision

Dave’s post about the Sixth Circuit’s decision today placing a temporary stay on the Clean Water Rule aptly notes irony and complexity in the court’s ruling:  the elements of the Rule with which the court finds potential fault may actually benefit the petitioners’ anti-regulatory objectives.  Another irony, and layer of complexity, is that the petitioners obtained the stay from a court that they believe lacks jurisdiction to hear the case. 

The Sixth Circuit decision arises in the context of a petition for review brought by eighteen states directly in courts of appeals pursuant to Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1).  That provision provides for challenges to certain agency actions under the Clean Water Act to be brought directly in courts of appeals as petitions for review rather than in federal district courts. 

The petitioners, who oppose the Clean Water Rule, would rather their challenge not fall under § 509(b)(1).  This is because agency actions that fall under § 509(b)(1) can be challenged only by a petition for review and not in any subsequent proceeding.  Thus, if the Rule falls under § 509(b)(1), a defendant to an EPA enforcement action could not invoke, as a defense, that the Rule is impermissibly broad and the Act therefore does not apply.

Why did the petitioning states file a petition for review under § 509(b)(1) if they don’t believe it applies—or at least don’t want it to apply?  The petitioning states filed both complaints in district courts and petitions for review in courts of appeals.  They filed their petitions protectively, merely to protect against the possibility that their district court challenges will be dismissed for lack of jurisdiction on the ground that they must be brought instead as petitions for review under § 509(b)(1).  [Two district courts have held that challenges to the Rule must be brought under § 509(b)(1), and one has held that they can be brought in district court.]  Thus, the petitioners have moved to dismiss their own petitions for lack of jurisdiction, hoping that the Sixth Circuit will hold that challenges to the Clean Water Rule should be brought as suits in district court. 

If the Sixth Circuit agrees with the petitioners on the jurisdictional question, it will have to dismiss the petitions for review, which will dissolve the stay as well.  In granting the stay, the Sixth Circuit noted that it will decide the threshold jurisdictional question “in a matter of weeks.”  Thus, if the petitioners are correct that the Sixth Circuit lacks jurisdiction, their stay from the Sixth Circuit may be very short-lived.  Of course, if the petitioners win on the merits, then they will have defeated the Rule and won’t be sorry that they had to proceed under § 509(b)(1).  What the petitioners do not want—and what still may happen—is for the Sixth Circuit to hold that § 509(b)(1) applies and then to uphold the Rule on the merits.

−Todd Aagaard

The Irony of the Sixth Circuit's Clean Water Rule Stay

This morning, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon which no one would have thought to comment.

According to the plaintiffs—and, now, the Sixth Circuit—EPA and the Army Corps violated that principle when they included distance-based jurisdictional criteria in the final rule.  Under the new regulations, wetlands that are more than 4,000 feet from a categorically jurisdictional water feature are categorically non-jurisdictional.  Under the proposed rule, those wetlands would have been subject to case-by-case jurisdictional determinations.  The final rule also includes specific numeric distance limitations on the definition of “adjacent” waters, which also are categorically jurisdictional.  These distance limitations, the court concluded, were not logical outgrowths of the proposed rule, and it therefore stayed implementation of the rule in its entirety.

The irony here is that, in the long term, the states may have shot themselves in the foot.  Or, at best, they’ve just achieved a little bit of largely inconsequential delay.  The state plaintiffs brought their claims for fundamentally anti-regulatory reasons: they wanted less federal jurisdiction, and they wanted more predictable limits upon that jurisdiction.  And the numeric distance limitations did just what the states wanted (though not as much as they wanted): they established boundaries on federal jurisdiction, and they did so on the basis of distance, which is typically more transparent and predictable than a complex science-based determination about hydrologic and ecological connectivity. 

Indeed, that move from science-based, site specific analysis to more blunt and categorical exclusions is precisely why environmental groups are upset about the distance limitations.  Those groups generally favor the new rule, but they have brought suits specifically focused on the very distance limitations that gave the states their “victory” today.  And if the ultimate result of this victory is that the distance limitations come out of the rule, the states will have succeeded in making the rule—from their anti-regulatory perspective—worse than it is at present.  The environmental groups, meanwhile, may just have achieved a key step toward excising the part of the rule that they particularly dislike.

Of course, all of this may turn out to be a tempest in a teapot.  As I’ve argued previously (and as EPA itself has repeatedly pointed out), the new rules don’t mark much of departure from previous practices.  In the field, this court decision won’t change much.  And the decision itself may not last.  As dissenting Judge Keith pointed out, the Sixth Circuit still has to decide whether it actually has jurisdiction to issue this stay.  If it finds that it lacked jurisdiction, the matter will revert to the district courts.  And if the issue does remain with the Sixth Circuit, this is just a preliminary stay.  I think there is some credible basis for these logical outgrowth arguments, but there also are some very credible responses.  With another round of briefing and argument, and a bit more time to think, the Sixth Circuit could come to a different outcome—which, then, may well be reviewed by the United States Supreme Court.

So stay tuned, and remember that in this dispute, things are not always as they seem.

-Dave Owen

Idaho Law Review Call for Papers - Hydropower and the Energy of the Future: Is there a Place for Dams?

CALL FOR PAPERS

***

 HYDROPOWER AND THE ENERGY OF THE FUTURE: IS THERE A PLACE FOR DAMS?

The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.

The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.

For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at: [email protected], or Professor Jerrold Long at [email protected]. Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at http://www.uidaho.edu/law/law-review/articles.

An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law

On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands.  In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being.  The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people.  Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . .  values” on public lands.  This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research. 

The fracturing rules that the BLM finalized in March 2015 are primarily informational.  (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.)  They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices.   The rules also require operators, after conducting a fracturing operation, to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information.  Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status.  Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing.   Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions.  This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.

In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation.  Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example.  For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate.  Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state.  For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands.   These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.

The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes.  It also has broader implications for environmental and land use law.  In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA).  And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow.   This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act.  Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act.  Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution. 

The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws.  For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands?  It would, it seems, following the court’s logic.   Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.  

Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law

Environmental Law, Environmental Politics, and Safety Valves

EPA decided on Thursday to issue a new national ambient air quality standard (NAAQS) for ozone.  EPA’s final rule sets the ozone NAAQS at 70 parts per billion (ppb), 5 ppb more stringent than the previous standard of 75 ppb, but at the upper (more lenient) end of the range of 60-70 ppb that was recommended by the agency’s Clean Air Science Advisory Committee.  The final rule is widely perceived as a compromise between public health objectives and concerns over the economic impacts of a more stringent ozone standard.  Under the Clean Air Act, however, it is well established that EPA’s judgment in choosing a NAAQS standard is supposed to be guided entirely by science, not economic costs.  See Whitman v. American Trucking Assns., 531 U.S. 457 (2001).

Environmental and public health advocacy organizations are criticizing the new standard as inadequately protective and scientifically indefensible.  One can indeed fault the Obama Administration for playing politics by compromising the Clean Air Act’s public health objectives, as it also did in 2011 when it rejected EPA’s attempt to promulgate a more stringent ozone standard.  But environmental politics are of course vitally important to obtaining results.  The new compromise ozone standard will make it more difficult for industry to lobby Congress to enact legislation overriding EPA’s standard than it would have been if the standard were more aggressive.  The political risk, not just to the Obama Administration generally but to the ozone standard specifically, of a more stringent standard would have been considerable.  The Administration’s compromise, by virtue of its political resilience, thus might actually result in cleaner air than a more aggressive but more politically susceptible standard.  The Administration’s compromise also undermines a broader caricature of EPA as a blindered agency unattentive to the economic consequences of its policies—a narrative that is both dangerous and untrue.  In this way, the Administration’s discretionary judgment to choose a new ozone NAAQS at the more lenient end of the scientifically defensible range of options acts as a potentially beneficial safety valve, mitigating the political firestorm that might have resulted from a more aggressive new rule.

The role of political safety valves in environmental law and politics has received some attention from environmental law scholars, but could use more.  In a recently posted draft paper on SSRN, Nathan Richardson (South Carolina) argues that the major questions doctrine, which allows courts to avoid giving deference to agency interpretations of statutes where the issue implicates particularly weighty policy questions, can serve as a beneficial safety valve that may reduce courts’ urge to jettison deference to agency interpretations altogether.  Like the new ozone rule, the major questions doctrine has elicited concern about whether it will undermine environmental policy—for example, by making it easier for courts to invalidate EPA’s new Clean Power Plan.  Richardson’s paper, however, argues that in the long run, the doctrine may help preserve agency deference.

Similar controversies have long plagued federal lands disputes, where Congress has sometimes enacted appropriations riders that create isolated exceptions to federal environmental requirements, such as a provision in a 1995 appropriations bill that streamlined environmental planning for certain timber projects on public lands.  Richard Lazarus, among others, has criticized such appropriations riders as “nondeliberative,  back-door, private deal-making.”  This characterization may be accurate, and the appropriations process clearly is not an ideal forum for deliberative democracy, but the safety valve that it offers may have some important pragmatic benefits that should be considered.

My point is not that political compromise is always justified.  But a political compromise may sometimes be justified at least partly on the basis of its safety valve benefits.  Whether a particular political compromise is justified because of its safety valve benefits will depend on weighing the various possible outcomes, and reasonable and informed minds will likely differ in making that assessment.

—Todd Aagaard