Environmental Law Prof Blog

Win Money, Prestige, and Glory, and Improve the Human Condition

Several environmental law writing contests are currently seeking student submissions:

• The ABA SEER’s Public Land and Resources Writing Competition (more information at http://www.americanbar.org/groups/environment_energy_resources/membership/law_student_resources/writing_competitions.html)
• ABA SEER 2016 Endangered Species Writing Competition (more information at http://www.americanbar.org/groups/environment_energy_resources/membership/law_student_resources/writing_competitions.html)
• The ELI/Beveridge & Diamond Constitutional Environmental Law Writing Competition (more information at http://www.eli.org/constitution-courts-and-legislation/2015-2016-beveridge-diamond-constitutional-environmental-law-writing-competition).

Federal Bureaucrats Outside Washington

Few clichés are more timeworn than equating federal governance with bureaucrats in Washington, D.C.  And that equation is rarely meant kindly.  Federal bureaucrats, according to common critiques, cannot match the particularized knowledge and localized sensitivities of their counterparts in state and local government.  Nor are they as accountable as their state and local counterparts.  Nor, the critics often contend, are they likely to govern as well.  Politicians, judges, and academics make statements like these all the time, and this conventional wisdom forms a key part of the bedrock upon which our federalism debates are constructed.

But are these accusations actually accurate?  Sometimes, no doubt, they are.  But in a new article--just published in the UCLA Law Review--I argue that these stereotypes overlook a few key facts:

• most federal government employees work outside Washington;
• much of the federal government’s decision-making occurs outside of Washington D.C.; and
• much of the interaction between the federal government and state and local governments—and private businesses and citizens—occurs outside of Washington, D.C.

I explored the consequences of this geographic decentralization through a series of interviews with regulatory staff at the U.S. Army Corps of Engineers, the agency with primary day-to-day responsibility for implementing section 404 of the Clean Water Act (among many other tasks), and with businesses and other government agency staff members who routinely work with the Corps.  The result is a more nuanced portrait of the geography of federal governance—and some interesting (I think) implications for debates about federalism and administrative law.

I hope that discussion will be of interest to anyone following current debates about section 404.  The new Clean Water Rule has placed section 404 in the crosshairs of litigators and legislators from across the country.  Federalism is already central to that controversy; advocates are claiming that the rule is a direct threat to the core values of our federalist system.   The article supports a different view.  The internal geography of the federal government, I argue, both increases sensitivity and accountability and offers states important—though bounded—opportunities to tailor the governance of stream and wetlands to their preferences.  The geography of federal governance, in other words, can and does advance the values espoused by federalism’s strongest proponents.

More broadly, the article holds lessons that reach across multiple fields of federal governance.  Not every agency operates like the U.S. Army Corps of Engineers, of course, but many other agencies are geographically decentralized.  That decentralization affects the ways they govern, both for better and for worse, and studying those effects is well worth doing. 

And at the very least, the article ought to give judges and law professors pause before they equate federal governance with bureaucrats in Washington.

- Dave Owen

A More Cautious Exercise of the Precautionary Principle - the Case of Land Development

As with most environmental law classes, my class begins by discussing drivers of environmental conflicts. This entails a discussion, of course, of scientific uncertainty and the exercise of the precautionary principle. I try to lay out for the students the competing thoughts on the precautionary principle by discussing a hypothetical product in the marketplace, demonstrating that the question ultimately boils down to: “do you ban a product until it is proven safe, or do you allow product until it is proven harmful?” Of course, it is difficult, if not impossible, to ever have scientific certainty. There are also risk-risk balances to strike. For example, we banned DDT in the United States because it causes cancer, but we might promote DDT use in places where malaria kills far more people and at a younger age than does cancer. The precautionary principle obviously plays out in a similar way with regard to many of our pollution problems. Whether it be mercury from coal-fired power plants, arsenic in drinking water, BPA leaching into ocean water, or carbon dioxide from numerous sources, we have a wide range of precaution available to exercise. In the climate change context, we worry about being overly cautious today, curbing important developments in society, and then climate change impacts not being as severe as our models predict. On the other hand, if we are not extremely cautious now, things may be a lot worse than we can imagine and worse than even the most dire models project. We simply do not know for certain, even if we feel fairly confident that things will tip toward the worse end of impact projections. The debate about how cautiously to exercise the precautionary principle in these circumstances is understandable. Cass Sunstein has argued  throughout his career that if we are overly cautious with regard to products in the marketplace, for example, then we may do more harm than good—we may keep a lot of products out of the marketplace that would do great good for society even if a few slip through that will do harm.

I would argue that land use, however, presents a different set of challenges when deciding how cautiously to exercise the precautionary principle. With pollution or chemicals in products in the marketplace, the sky is the limit on both the types of harms that could be created and the technologies that can be developed to either replace those products or curb their harmful effects. So you effectively have a moving target on both ends—the product or activity may flexibly adjust to a wide degree on one end, while the solution or technological fix may flexibly adjust to a wide degree on the other. The land base is different. Land is finite. No amount of technological fix can create more land. We can build up, certainly, and put our parking lots under our buildings, and so on. This, in effect, may be characterized as creating more land. But at the end of the day, humans engaging in activities on the land base are dealing in a finite resource.

This is why what is happening to the land base in my hometown of Baton Rouge, and indeed all over the country, is so troubling. The image at the top of this post is of an area not far from Louisiana State University's campus that has been recently cleared for development.  My students tell stories about this area as an ecological treasure in which they used to play as children, being exposed to wildlife, waterways, and other values provided by the forest (perhaps some of these students created the sign protesting the development). Miles and miles of this strip of land bordering a road south of LSU's campus have been cleared in the last two years. And you can see this effect taking place in dramatic fashion in Baton Rouge or in your neck of the woods by using this useful tool (tracking land use change via satellite since the early 1980's). Interestingly, this plot of land is only about half a mile from the Mississippi River levee. If it weren’t for the levee, the area would likely be navigational wetlands subject to Clean Water Act section 404 permitting. As it stands, however, it can be developed with impunity unless the city steps in to curb the loss of open space. Ironically, the development that is going to replace the woods is called....wait for it....Wildwood.

Wildwood. Seriously. The irony would be laughable if it weren’t so sad.

I’m working on a research project arguing that if we would do a better job of exercising the precautionary principle through land use decisions at the state and local level, we can reduce the size and scope of the federal bureaucracy. We have very good scientific data demonstrating that species are more likely to become endangered when their habitat is fragmented. Species diversity is correlated directly with the amount of habitat available. So if we could do a better job of reducing urban sprawl and conserving habitat and open space at the state and local level, we can reduce expenditures and bureaucratic expanse under the federal Endangered Species Act. Similarly, science is fairly settled on the impacts of impervious surfaces on water quality. The degradation to the nation’s waters increases exponentially as the percentage of land in a watershed becomes impervious. So, by reducing urban sprawl and preserving open space, state and local governments could reduce federal expenditure and bureaucracy under the federal Clean Water Act. We also know the data behind urban sprawl and mobile source air emissions. So by reducing urban sprawl and preserving open space and concentrating development through the use of urban growth boundaries and density requirements, mobile source emissions could be decreased, reducing federal expenditure and bureaucracy under the Clean Air Act.

In the end, we must do better by our land. By "removing the woods," we are creating the very problems that then require us to create massive and expensive federal bureaucratic fixes. It is said that the definition of insanity is doing the same thing over and over and expecting a different result. But I would posit that another definition of insanity is purposefully creating an avoidable problem that you then must create increasingly complex solutions to address. A better exercise of the precautionary principle in land use development could go a long way toward stopping the insanity.

- Blake Hudson

How the NFL Ducked CEQA

Last week, Los Angeles celebrated the return of professional football.  Overlooked in the celebration, however, was the fact that the NFL just slipped through one of environmental law’s biggest loopholes. The Rams’ new Inglewood stadium will not be subject to the California Environmental Quality Act (CEQA) – the state’s major environmental protection law – because the stadium plan was approved through the ballot initiative process.

Under California law, proposals enacted through the initiative process are exempt from CEQA, even though the exact same proposal would be subject to extensive environmental review and mitigation requirements under CEQA if passed legislatively.  So regardless of the environmental impacts of the project – and whatever the benefits, the 200-plus acre, 80,000 seat, 10,000 parking spot stadium will clearly have enormous environmental impacts – since the Rams’ stadium proposal was enacted by ballot initiative, CEQA is simply inapplicable. 

Before explaining how the NFL achieved this coup, some background on CEQA for those unfamiliar with it:  CEQA was the first state environmental law to be enacted after NEPA and is one of the most rigorous environmental laws in the nation.  Like NEPA, CEQA requires the preparation of an environmental assessment (an environmental impact report, or EIR, in CEQA terminology) to identify adverse environmental impacts of proposed projects.  CEQA requires an EIR not only for administrative actions by the state, but also for legislative actions by local governments, as well for private activities, to the extent that a government approval is required to conduct those activities.  And unlike NEPA, CEQA imposes both a procedural and a substantive mandate.  Projects cannot be approved “if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects.”  If an EIR identifies significant adverse environmental impacts of a project, CEQA generally requires that those impacts be addressed through mitigation measures, or the project can be denied.

CEQA is thus a powerful tool for government transparency, citizen involvement, and environmental protection.  By requiring analysis of environmental impacts and consideration of mitigation measures and alternatives, CEQA creates a process by which a developer is brought to the table to address the most problematic parts of a project.  From a developer’s perspective, however, CEQA can feel less like an opportunity for negotiation and more like an obstacle to overcome.  CEQA lawsuits can stop – or significantly slow – a project in its tracks. In San Francisco, for example, opponents of a proposed NBA stadium for the Warriors have hired David Boies and other high profile litigators to launch a CEQA lawsuit against the project, saying they are prepared “to litigate until the cows come home.”  And earlier NFL stadium proposals in Los Angeles failed in part because of the threat of CEQA litigation (eventually, the state legislature passed one-time exemptions from CEQA for those stadium proposals, but the proposals never took off). 

Using the initiative process to avoid CEQA altogether, then, is understandably tempting to developers.  If the ballot box loophole ended here – with proposals submitted to voters exempt from CEQA, even if the exact same proposal, passed legislatively, would be subject to CEQA – it would be troubling enough.  Voters may not intend to pass initiatives that are harmful to the environment, but depriving voters of information about environmental impacts means that they are more likely to unintentionally do so.  CEQA was enacted precisely because legislators were failing to consider the environmental impacts of their decisions in the absence of a legal mechanism to force them to do so; there is little reason to expect voters as lawmakers would behave differently.

But the ballot box loophole is even bigger.  Initiative sponsors can actually avoid an election altogether, and still take advantage of the CEQA exemption for initiatives if the city council approves the ballot measure directly – which is exactly what happened with the stadium initiatives in both Inglewood and Carson.  Before voters in those cities even had a chance to vote on the stadium proposals, the city councils in both cities opted to approve the initiative proposals without any election at all, while still avoiding CEQA compliance.   

So by funding a $1.7 million ballot initiative, Rams owner Stan Kroenke essentially paid his way out of having to comply with California environmental law.  CEQA admittedly is in need of reform to make it a less time-consuming, expensive, and overly bureaucratic process.  But the fact that current law allows the NFL and other deep-pocketed developers, like Wal-Mart and oil companies, who have also utilized the ballot box loophole to avoid complying with CEQA, is deeply troubling.  Not only does it undermine the environmental protection and public disclosure goals at the heart of CEQA, it exacerbates the capture of the initiative process by special interests.  Furthermore, because larger developers are more likely to be able to afford the cost of sponsoring initiatives, the ballot box loophole means that smaller developers will likely continue to be subject to CEQA, while the largest developments – those most likely to have the most significant environmental impacts – can evade CEQA by utilizing the initiative process.

In a recent decision affirming that CEQA review is not required before direct adoption of an initiative by a city council, the California Supreme Court made clear it is not its responsibility to remedy the ballot box loophole.  Thus, eliminating the ballot box loophole will require legislative action to amend both CEQA and the state Election Code (for a detailed discussion of suggested statutory changes, see 40 Ecology Law Quarterly 833, 871-75). Whether Sacramento lawmakers are up to the task is unclear, but until CEQA’s ballot box loophole is eliminated, California’s signature environmental protection law looks more and more like a paper tiger – or rather, a paper ram. 

Kellen Zale is an assistant professor at the University of Houston Law Center, where she teaches and writes in the areas of property, local government, real estate, and land use law.  Her article on CEQA and the ballot box loophole, Changing the Plan: The Challenge of Applying Environmental Review to Land Use Initiatives, 40 Ecology Law Quarterly 833 (2013), is available here.

Disclosure: The author was formerly an associate at Gibson, Dunn & Crutcher, which represents a party involved in the Inglewood stadium development project.

With Astonishing Speed, the Ninth Circuit Holds Hage Family Liable for Trespass, Damages

A little over a month ago, the Ninth Circuit heard oral arguments in United States v. Estate of E. Wayne Hage, a trespass action by the federal government against E. Wayne Hage and his family for decades of unauthorized grazing on public allotments in central Nevada.  The district court (Jones, J.) ruled in favor of the Hages, finding that their water rights created an easement by necessity to bring cattle onto the allotments (without a permit) and established a defense to the trespass claims, and that BLM officials who had investigated the trespass incidents and denied Hage’s applications for grazing permits violated his Due Process rights.  Moreover, the district court held those officials in contempt for their actions.  On Friday, in a strongly worded 30-page opinion, issued with relative lightning speed (slightly more than 30 days after oral argument), the Ninth Circuit vacated the easement ruling, reversed the APA ruling, and reprimanded the district court for both its legal reasoning and stated opinions during trial in this and other cases--opinions that reflected “both pre-judgment of the merits and bias against the federal agencies.”  Remanding the trespass issue for a determination of damages, the panel instructed that the case be assigned to a different judge, and wrote separately to reverse the contempt ruling against the two BLM officials.

As noted in the previous post about this case, the Ninth Circuit appeal arose out of a trespass enforcement action by the Department of Interior, which the Hages defended using a theory of vested grazing rights predating the passage of the Taylor Grazing Act in 1934.  Essentially, they argued that the Pine Creek Ranch had implied grazing rights under territorial law and the Treaty of Ruby Valley, by virtue of water rights acquired in the early 1900s.  The federal district court ruled against the Hages on those arguments, but, in a novel (and unsupported) interpretation of federal grazing laws, held that a) there is a property right for the purposes of the Due Process Clause (both “substantive and procedural”) in a grazing permit and b) that the federal government may not deprive a permittee of a grazing permit without observing “certain procedural safeguards.”  In addition, the court held, there are certain circumstances in which the federal government may not take “adverse action” against a permittee, regardless of the procedure.  The latter rationale formed the basis for the contempt ruling against the two BLM officials.  Remarkably, the district court also encouraged the Hages to counterclaim under the APA, which they did, arguing that the 1993 denial of E. Wayne Hage’s grazing permit application was arbitrary and capricious agency action.

On the trespass claim, the Ninth Circuit held that the Property Clause, its progeny cases, and in particular the Taylor Grazing Act, “revoked” any prior federal practices and policies of allowing indiscriminate grazing on the public domain.  Approximately 15 years after the Taylor Act was passed, Congress revoked any implied license to graze on national forest lands.  The court emphasized that both Congressional acts expressly disclaimed the creation of any “right, title, or interest” in the public lands leased or permitted for grazing.  With respect to the water rights argument (the district court had held that possession of water rights on a grazing allotment created an easement by necessity allowing the holder to bring cattle onto the allotment, without a permit, to water and graze them), the court held that the “preference” provision of the Taylor Act conferred only the benefit of being first in line for holders of water rights when a grazing permit is first offered, but that it has “no effect” on the independent requirement that “a rancher obtain a grazing permit … before allowing cattle to graze on public lands.”  Therefore, the court held that the Hages were liable for trespass under the federal grazing statutes, vacated the trespass ruling, and remanded the case for a determination of the damages owed.

As for the Hages’ counterclaim under the APA, the Ninth Circuit reversed, holding that it was time-barred.  The Hages had attempted to argue, under the continuing violations doctrine, that the federal government’s filing of the trespass suit in 2011 constituted a final agency action for which an appeal could be taken.  The panel disagreed, noting that the case upon which the district court relied for its ruling that a litigation action could constitute final agency action – AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) – actually reached the opposite result.  In sum, agency decisions about litigation are committed to agency discretion by law and cannot constitute the basis for an APA claim.

Finally, the Ninth Circuit remanded the case to the district court for a determination of damages on the trespass claims.  Notably, the panel instructed the chief judge of the district court to assign the remaining issues to a different judge because Judge Jones’s rulings on the trespass claim and APA counterclaim had “contravened” the law, and he had “grossly abused the power of contempt by holding two federal agency officials in contempt of court for taking ordinary, lawful actions that had no effect whatsoever on this case.”  In fact, over one-sixth of the opinion (almost 6 full pages) was dedicated to an explanation of Judge Jones’ conduct in this and other cases, demonstrating – in the words of the panel – “bias” against federal agency officials ("[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious"); “arrogance”; abuse of discretion in routinely declining to admit federal agency attorneys from out of state (noting that even a “reasonable observer” would conclude that his "feelings against out-of-state attorneys are both well-established and inappropriately strong"); and generally “troubling” views about the law and appellate review (“Judge Jones’ actions ‘can only be explained as a deliberate attempt to evade review by higher courts’”).  In a separate memorandum opinion, the panel reversed the contempt rulings against those officials, holding that the district court had applied “the wrong legal standard,” but even applying the correct standard, no finding of contempt was warranted.

This decision is certainly a victory for the federal government in its decades-long struggle to enforce federal grazing law against the Hage family, but it remains to be seen what will come of the Federal Circuit Court of Appeals’ consideration of the related takings claims in Hage v. United States. That litigation appeared to be finally resolved in 2012, but, through a series of post-trial procedural motions, the Hages have managed to stoke the litigation flames at least through 2016, and perhaps beyond.

Hillary Hoffmann

Hillary Hoffmann is a Professor at Vermont Law School, specializing in federal grazing law.  She and her colleague, Professor John Echeverria, wrote an amicus brief in the Ninth Circuit appeal, on behalf of NRDC and the Sierra Club.

Junior Environmental Law Faculty Conference at Columbia Law School

Columbia Law School is again sponsoring its Sabin Center Colloquium for junior environmental law faculty.  The official announcement is pasted below.

SABIN COLLOQUIUM ON INNOVATIVE ENVIRONMENTAL LAW SCHOLARSHIP

Columbia Law School

New York, New York

May 2

​6-27, 2016​

This ​4th​  Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.  Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.  

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to [email protected] by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 2​6​, and all day on May 2​7​) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year's competition and participating in the workshop will be:

​Robin Kundis Craig -- ​University of Utah College of Law

​John Dernbach -- ​Widener University Law School

Michael Gerrard -- ​Columbia Law School

​Hari Osofsky -- University of Minnesota Law School

Thanks, and good luck!