Environmental Law Prof Blog

Monsoon Madness

NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.

Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.

Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.

Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.”  In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.

India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.

Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.

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

More on the NRC

Following up on Dave's post yesterday, also see this New York Times article on the NRC's new leadership.  As reported by the Times, the NRC has suspended some licensing decisions until it can prove that the lack of storage for nuclear waste does not threaten public health and safety (order available here).  What exactly is being suspended is of interest:  any licensing decisions dependent on the Waste Confidence Decision and Temporary Storage Rule.  Of further interest is how this issue was brought to a head--through litigation in the D.C. Circuit.  It is fascinating to watch as all the branches play a part in moving the conversation about nuclear energy--and spent nuclear fuel--forward.    

 

-Emily Meazell

Spending Power Bargaining After Obamacare

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future.  After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.

By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid.  Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others.  Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.

These partnerships reflect the complex way that the Constitution structures federal power, through both specific and open-ended delegations of authority.  Specific congressional powers include the authority to coin money, establish post offices, and declare war.  More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks.  Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority.  (Of course, there is some overlap between the two, but that’s another story and a previous blog.) 

The Spending Clause authorizes Congress to spend money for the general welfare.  Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence).  Sometimes, Congress just funds state programs that it likes directly.  But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see.  In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children). 

In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach.  A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law.  Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.

Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal.  If they don’t like the attached strings, they don’t have to take the money.  Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration.  In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations.  No law has ever run afoul of these broad limits, which have not since been revisited—until now.

In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it.  All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms.  Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously.  But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled.  Even though they really wanted out, they claimed, now they were stuck.  The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please. 

In deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership.  Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal.  We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy.  (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”)  Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to.  No coercion, no constitutional problem. 

But then the decision takes a key turn.  What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs.  Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive.  By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion.  To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion.  Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics).  The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.

Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid.  For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.”  She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”

On these points, Justice Ginsburg is right.  The decision offers no limiting principle for future judges or legislators evaluating coercive offers.  “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that.  Moreover, the rule is utterly unworkable.  No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum).  The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge.  And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir. 

Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership.  It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent.  But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding).  The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes.  (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.) 

It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way.  Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power.  But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system.  Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse.  Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.

Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem.  To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership.  Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review.  But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.

--Erin Ryan 

--A version of this essay first appeared on OUP Blog, and later on ACS Blog. 

 

In Case You Missed It -- Week of July 8 -14

- Big news on climate change litigation and the public trust doctrine, blogged about right here

- EPA released a draft evaluation of Iowa's NPDES program for CAFOs, available here

- Check here for a thoughtful op-ed about considering a world without coral reefs

- The federal circuit court of appeals awarded damages to nuclear power plant owners that incurred costs for spent nuclear fuel storage

- The Obama Administration released a report on progress and next steps for restoring the Everglades

 

 

 

 

Changes at the NRC

For those following the Yucca Mountain controversy, nuclear energy policy, and the fascinating administrative law story of the NRC:  last week, Allison M. Macfarlane, a geologist who is considered an expert in the back end of the fuel cycle, was approved by the Senate as the new chair of the Commission.  She follows Gregory Jaczko, who was instrumental in halting the Yucca Mountain Project and who resigned in May.  Any predictions about what the new chair will bring?

-Emily Meazell 

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety

Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people.  (This is the fifth in my series of reports from the field about the environmental experiences of an environmental law professor in China—for the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, and May’s exploration of water quality issues.)

While preparing for our year in China, we wondered what we should bring with us from home.  Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here!  But after our arrival, we were surprised to discover how mistaken these assumptions were.  It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world.  What’s not true is that they are available for purchase in China.  As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption.  In fact, it’s illegal to sell goods produced for export on the domestic market.  And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.

Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time.  Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it.  Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development.  In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai  and Shenzhen, or the northern city of Qingdao, where we live.  But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.

Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago.  And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone.  Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters.  Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives.  As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.

This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day.  Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own.  And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire. 

Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint.  Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys. 
As the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case.  But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety.  You can’t just pull everything out, just in case.  There will be nothing left.

In China, the most troubling examples relate to food safety.  In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products.  The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure).  Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market. 

I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.)  These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China.  We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.

Baby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families.  But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels.  The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects.  Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s.  But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.

(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country.  And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now.  Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)

China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively.  The United States has been here before as well, and it may just be a necessary part of the process of economic development.  But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development.  The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards.  And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export! 

Because milk is just the tip of this iceberg.  Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics.  This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct.  From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long.  Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it). 

I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S.  It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products.  I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms).  I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class.  He responded that, yes, if he were a Chinese official, he would probably do the same thing.  But as a Chinese consumer, all he really wanted were some quality shoes.

Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much.  My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side.  If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?

Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural.  In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant.  I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases.  But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant.  In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity. 

In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses.  The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires.  Similarly costly are the traffic-related mortalities that are unfortunately common here.  Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance.  (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!)  Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.

Yet this is only part of the story.  Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture.  Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines.  Healthful living is a huge and important part of Chinese culture, and among its most admirable.  Chinese people eat dried fruits and nuts instead of cheese doodles.  They rest regularly and sleep well at night.  Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life. 

I don’t just mean that Chinese people are in better shape because fewer have cars and must walk where Americans usually drive, although that’s also true.  Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans.  In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi.  Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen.  After dinner, families take a ritual “digestive” walk around the neighborhood together.  Then begins evening exercise, when people again gather in public areas for a variety of activities.  Children play openly while men play team sports.  Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music.  We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age.  They are frequently used, especially after work, by young and old alike.

So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught.  Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates.  Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change.  But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most. 

--Erin Ryan

 

Mingo Logan Coal Co. v. EPA, On Appeal

Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis.  For those following the case, it's now on appeal to the D.C. Circuit.  EPA's statement of the issues, filed last week, keeps things crisp: 

The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.

EPA's brief is due on July 18. 

-Emily Meazell

Legislating Climate Science

Much to my chagrin, a number of people have forwarded me information about a proposal in my new home state:  a bill that would require the following of sea-level rise estimates:

"These rates shall only be determined using historical data, and these data shall be limited to the time period following the year 1900. Rates of sea-level rise may be extrapolated linearly to estimate future rates of rise but shall not include scenarios of accelerated rates of sea-level rise."

In the past, I've taken the position that unless there's some special interest at stake (like suspect classifications or fundamental rights), courts ought to be reluctant to interfere when legislatures make policy decisions based on faulty science.  On the other hand, a legislature getting science plain wrong might signal no rational basis.  Is there room for that analysis here?

At the very least, this is a reminder that courts often provide a check that's too little, too late.

-Emily Meazell

Call for Papers: AALS Sections on Property and Natural Resources/Energy Law to Host Joint Program

On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA.  This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come.  It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.”  Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.

The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.”  Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges.  The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law).  The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.

Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at [email protected] by June 15, 2012.  Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers.  Submitting authors will be notified of the results of the selection process by July 1, 2012.  To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012.  The selected authors will be responsible for paying their annual meeting registration fee and travel expenses.  Questions should be directed to Professor Saxer at the above-noted email address.

Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.

-Tim Mulvaney

Environmental Law Has Lost a Champion: In Memory of Judge James R. Browning

In this post, I take a hiatus from chronicling my adventures in China to reflect on the passing of a giant of the American legal system, a friend of the environmental movement since its early days, and a beacon for my own spirit, Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.  Judge Browning died last week at age 93, and the world is emptier in his wake. A Montana native appointed by President John F. Kennedy, he served over half a century on the Circuit (perhaps the longest serving federal appellate judge in U.S. history), including twelve years as a particularly beloved Chief Judge.

Judge Browning was small in stature and quiet in voice, and his gentle manner moved all with whom he interacted, from members of Congress to the courthouse cleaning staff. In testament to his crusade for justice and kindness through the legal system, the Courthouse where he sat in San Francisco now bears his name. What follows is taken from an essay contributed to a recent issue of the Montana Law Review celebrating his accomplishments (published a few weeks before his death), in which former clerks were asked to describe the man and his influence on their own development within the law:
 
I began clerking for Judge Browning just as he began his transition from active to senior status after forty years on the bench. I had just graduated from law school, which I had attended after a brief career as a forest ranger near Yosemite National Park. Judge Browning and I shared a love of wilderness and open spaces that somehow bridged his Montana upbringing with mine in New York. Today I am a law professor and at the moment, a Fulbright Scholar in China, studying environmental governance in a system so different from the one in which he first immersed me. To recount the story of his influence since then, there are too many points to begin.
 
I could share what I learned from him about the art (and artifice) of holding a society together by the rule of law, a lesson especially powerful now that I am living in a society that isn’t.
 
I could recount the memorable opinions that we worked on. There was the one preserving a modicum of tribal sovereignty despite centuries of the countervailing trend in Federal Indian Law, in which he deftly wielded precedent to both cut and shield, demonstrating the great common law tradition of pursuing justice within consistency. Or the one upholding sensible environmental regulations against an insensible but novel federalism challenge, resolving perplexing questions that kept me alone in chambers with federalism theory texts for unending days and nights (and which would later fuel my own academic research agenda). Or the case in which he found a remedy to assist the septuagenarian inmate at risk of losing nearly all his teeth to callous neglect by prison staff, even after I had resignedly concluded that there was none.
 
I could recall the simple delights that he took in life, like his ritual mischief of eating a single peanut before reaching the supermarket cash register across from the Pasadena courthouse. He would enjoy the peanut in the aisles but save the empty shell for the cashier, which he politely presented with an impish grin. Then he would insist on jaywalking back to court across the wide boulevard, darting through unsympathetic traffic, even into his 80s.
 
I could talk about the humble but practical choice to make his San Francisco office not in the hallowed Chief Judge’s central chamber, but in the corner meeting room that was smaller but had better sun (such that generations of clerks would, as I did, crawl out of a law library carrel and into the grandest office we would doubtlessly ever inhabit). I could talk about the treasures and secrets that I found improbably hidden within the very walls of that office, where previous clerks had left them over the years—small notes and totems that would momentarily suspend me in the gossamer margin of present between the ghosts of JRB brethren past and spirits yet to come. It is fitting that the building now bears his name, as well as the spirit of collegiality, wisdom, and mercy that he infused into the conduct of justice within it.
 
But my favorite "JRB" tale has nothing to do with the Courthouse, or a case, or even the law. It is about the wisdom he shared when he graciously agreed to officiate at my wedding the following year. We were thrilled that he was willing, as he was already the grandfather I never had as an adult, the mentor I never had in law school, and the sage we all hope for in positions of authority. My fiancé regarded him with similar awe and adoration. We could think of no one better to shepherd us into this next, most important phase in our lives.
 
Judge Browning agreed to marry us, but first we would meet with him to discuss the project. Not of the wedding itself, of course, but the project of our marriage. By that time, he and Mrs. Browning had been married well over half a century, and he clearly had as much wisdom on this issue as anything legal. We met at the Mill Valley Train Station Cafe and dove into the sanctity of the matter over blueberry muffins and hot drinks. He wanted to know why we had chosen to marry, and what we expected of the institution. He needed to know that we were ready, and that we would approach our commitment with the requisite spirit of joy and resolve. This was important to him. He could not preside at a wedding that skewed more toward the flowers and photographs than the sacred bond at its heart. At the end of our meeting, apparently satisfied with our discussion, he gave my husband a wink and the most practical advice of all: “My secret to fifty years of bliss? She is always right!”
 
There were plenty of flowers and photographs at the wedding, which took place in a Sonoma County garden over Labor Day weekend, with happy friends and relatives gathering from all corners of the country. It made no difference to Judge Browning that my husband’s two mothers had made the same level of commitment we would now undertake. It made no difference that our vows referenced a spirituality that was not his own. It made no difference to him that we had implored him to let us arrange his ride, and so he and Mrs. Browning arrived nail-bitingly late as he slowly but safely navigated to our remote garden setting. The only thing that mattered to Judge Browning was the solemnity and joy of the occasion. He presided with a grace, wisdom, and generosity that helped set transcendental foundations for the marriage he helped bring into being. Through the times of solace and difficulty since, we have always drawn on the strength and faith that he infused into our rite of passage.
 
In retrospect, Judge Browning’s contributions to our wedding were not that different from those he made to every case that he helped decide, every law clerk that he shepherded, every aspect of justice that he has helped to administer over the years. In each instance, he never lost sight of the ultimate object of his attention: the people before him. Whether interpreting the principles of constitutional federalism, the doctrine of qualified immunity, or the Sherman Antitrust Act, his considerations—though impeccably informed by jurisprudence—always centered on the individuals who would be impacted. The citizens participating in their own governance. The suffering elderly inmate, and his caretakers who will next time rise to the occasion. The consumers that antitrust laws are designed to protect. The bride and groom, immersed in alternating tides of hope and fear.

Judge Browning always saw the human beings at the center of the circle, and he looked them in the eye. He always wielded the judicial power as a tool for realizing justice by advancing human dignity. Because of his example, countless litigants, attorneys, court personnel, and clerks renewed their faith in the legal system, and in a civil society organized around it. I certainly did. This is, perhaps, his greatest gift.
 
--Erin Ryan

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

- It's National Bike Month

- It's also Asthma Awareness Month

- The New York Times reported that Japan has shut down the last of 50 nuclear reactors, leaving the country without nuclear power for the first time in 42 years

- TransCanada submitted a revised application for the Keystone pipeline

- President Obama issued a new Executive Order entitled Identifying and Reducing Regulatory Burdens (critical analysis here)

The Link Between Policy and Innovation

Most of us intuitively recognize that laws can spur technology innovation.  But what about the other way around? Is there a certain threshold of technology availability and reliability necessary to motivate policy changes? That's the topic of an intriguing blog post here, which spotlights General Electric's policy and innovation study. The study, which comes complete with a new data visualizer, provides a graphic look at the prevalence of words like "wind" and "renewables" in GE's annual reports going back to 1892.  Take a look at wind:

GE argues that the Energy Policy Act of 1992's production tax credits were key to the development of renewable energy technologies, like GE's industry standard 1.5-MW wind turbine.  It also links the availability of those technologies to policymakers' willingness to implement renewable portfolio standards in many states.

If GE is right, what investments should we be making now? What technologies need more policy support, and what new policies are ripe given the technology we have available now?

(H/T to my energy law students for bringing this study to class!)

--Emily Meazell

The Good and the Bad in the BP Settlement, and the Main Course Still Ahead

 

I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.

I'd been called for jury duty.

Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.) 

Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution. 

Hard Bargaining Rewarded

The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan. 

Settlement claims are divided into those for economic loss and medical harm.  It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize.  So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.

As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.

The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.

Lost Hope for a Speedy Trial?

I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.

The Main Course

When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.) 

Is their number up? Today, not by a long shot.  But we’ll see.

--Rob Verchick  

When Agencies Can't Get Along

Last time, I posted some thoughts on Mingo Logan Coal Co. v. EPA, in which the D.C. District Court held that EPA exceeded its statutory authority when, after the Army Corps of Engineers issued a section 404 permit, EPA withdrew the underlying site specification.  I considered the administrative-law and civil discourse aspects of the opinion in the previous post, but another interesting aspect of the case is the relationship between EPA and the Army Corps of Engineers. 

Throughout the permitting process, EPA expressed concerns about the environmental impacts of Mingo Logan’s mountaintop mining project, but it never exercised its veto authority over the specification of disposal sites.  Two years after the Corps issued the permit, however, EPA sent a letter to the Corps requesting that the latter revoke the permit.  Only after the Corps refused did EPA take matters into its own hands by withdrawing the site specification—a post-permit step the court held outside the bounds of EPA’s statutory authority.

Mingo Logan involved the Clean Water Act, but environmental law relies on interagency relationships at every turn.  Moreover, these relationships exist horizontally between federal agencies as well as vertically between federal and state agencies.  Jody Freeman and Jim Rossi document a number of such relationships here, as does Eric Biber here. 

Lately I’ve been working on a project that asks how courts should respond when agencies conflict.  That circumstance can put the usual reasons for judicial deference—superior political accountability and expertise—in tension with one another so that it’s not immediately obvious which agency ought to prevail.  While it’s unusual for two agencies to be opposing parties in court, it does happen occasionally, and it seems to me that there are a number of approaches a court might take to sort out the dispute.

But in most instances, agency conflicts lurk in the background of court cases.  That is, the action agency gets sued and its behavior is the focus of judicial review.  That’s how the Mingo Logan case worked; although the court described the relationship between the Corps and EPA, that relationship had little, if any, bearing on the court’s analysis.  Rather, the court evaluated EPA’s action in the usual way—here, in terms of its conformity to the statutory mandate—with deference accorded as justified.  This has also been the approach of the D.C. Circuit faced with the Yucca Mountain controversy, and there are many more examples.  Although I’ve concluded that fidelity to statute is the proper approach in such circumstances, I admit that it’s a little unsatisfying.  Is there any way to account for another agency’s involvement? Has anyone seen any novel approaches to this issue?

- Emily Meazell

China Environmental Experiences #3: Breathing Air with Heft

This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.

It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?

As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.

Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there.  [For a good-day/bad day photo comparison, see this follow-up post.]

And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.

But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.

As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.

In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine. 

But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.

It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.

After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.

In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.

In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.

Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)

Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)

Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”

In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)

Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.

--Erin Ryan

Mingo Logan Coal Co. v. EPA -- Some Initial Reactions

On March 23, 2012, the D.C. District Court issued an opinion in Mingo Logan Coal Co. v. EPA that raises a host of fascinating environmental and administrative law issues.  The facts alone have attracted quite a bit of attention—this case is about mountaintop mining.  There is plenty to say about this case, but here are some initial reactions focusing on two aspects of the opinion:  the administrative law analysis; and the overall tone of the reasoning.

Some Background

Mingo Logan, the petitioner in the case, obtained various permits from West Virginia for its mountaintop mining operations (including an NPDES permit that EPA initially opposed).  It also applied to the Corps of Engineers for a Clean Water Act (CWA) section 404 permit to discharge material from its mine into nearby streams.  EPA expressed concern over this permit and the accompanying EIS, but it didn't exercise its veto authority and the permit was eventually issued in 2007.

Two years later, EPA requested that the Corps withdraw the permit, stating that downstream water quality impacts hadn’t been adequately addressed.  The Corps rejected that request, and in 2010, EPA announced its plans to withdraw the specification of most of the streams comprising Mingo Logan’s discharge area.  The withdrawal became final in 2011, and Mingo Logan sued.                  

The Chevron Analysis

In her opinion on cross motions for summary judgment, Judge Amy Berman Jackson treated the issue—whether EPA exceeded its statutory authority under section 404(c) of the CWA by withdrawing the site specification after the Corps had issued the permit—according to the two-step Chevron analysis.  The language under consideration:  "The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site . . . ."  

The court's Step One analysis set up a few strawmen of possible but unlikely meanings of this provision before knocking them down and turning to the statute as a whole.  Here, the court expressed concern about the mechanics of a post-permit withdrawal.  It's true that the agencies don't appear to have worked out those particulars, but it's not clear why that undermines the authority of the EPA to withdraw a specification.  Aren't there plenty of situations where Congress delegates broad authority and leaves the particulars to the EPA?  In any event, the court here created some Brand X ambiguities by not being entirely clear whether the statute unambiguously prohibits a post-permit withdrawal. 

But the Step Two analysis is where things got especially interesting.  First the court asked whether Chevron applied, given that two different agencies share responsibilities for 404 permitting (some courts and scholars treat this as a Step Zero issue instead).  Judge Jackson determined that Chevron was not warranted, but she may have missed an opportunity for deeper analysis.  Other courts have examined agencies' responsibilities more closely here and given deference to the agency with expertise.  Arguably, the EPA has expertise when it comes to reasons a withdrawal would be warranted.  The court decided Skidmore deference would be appropriate in this circumstance (again, slightly unusual to embed that in Chevron Step Two).  But then it gave short shrift to the things that matter under Skidmore, like the consistency of the agency's interpretation over time (it's been in place since 1979).  An agency's policy rationales also matter under Skidmore, but the court dismissed the EPA's policy statements on the matter while raising its own policy concerns about commerce.  Ultimately, the court determined that EPA's interpretation is unreasonable; thus, the agency acted outside its statutory authority. 

A Few Words About Tone

But here's what really stood out about the opinion:  its tone was disrespectful and at times, caustic.  Take this passage:

. . . EPA resorts to magical thinking.  It posits a scenario involving automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.  Poof!

No matter the substantive outcome or administrative law approach, it's disappointing to see a court treat one of the parties disrespectfully.  Especially for issues that arouse such passion (jobs, mining, mountains, water), what is the impact on the perceived legitimacy of our system in the long-term when judicial rhetoric takes this kind of turn?

For some great insights, take a look at Dave Markell, Tom Tyler, and Sarah Brosnan’s forthcoming empirical piece on procedural preferences, trust, and the importance of the decisionmaker treating parties in a respectful way.  The bottome line:  it matters.

Please, let's aim for civil discourse.  And let's model respectful behavior for our students.

--Emily Meazell

Fukushima and Burning Questions

This week, National Public Radio aired the first of a four-part series entitled BURN:  An Energy Journal.  The first, aired on the one-year-anniversary of Japan’s earthquake, focused on Fukushima, asking what we’ve learned, and what’s next.

Also this week, the National Council on Radiation Protection & Measurements held its annual meeting, with a focus on two events:  a study showing medical exposures to radiation now account for about 50% of the United States population’s annual radiation dose; and the accidents at the Fukushima reactors and storage facilities.  Both issues raise questions about lessons learned and best practices going forward (and look for a later post on low-level radiation exposure). 

Here’s a sample of the law, policy, and science flurry of activity over the past week or so that’s focused on some of the enduring questions surrounding nuclear technology made especially salient by Fukushima’s anniversary:

• Scientific American:  1 Year Later, What Does Fukushima Mean for Nuclear Research?
• The journal Science published a study entitled Nuclear Fuel in a Reactor Accident, which discusses research priorities for developing predictive models of radionuclide behavior during and after accidents
• A U.S. Geological Survey study measured minimal amounts of fallout in U.S. precipitation following Fukushima
• Lincoln Davies’s piece Beyond Fukushima: Disasters, Nuclear Energy, and Energy Law appeared on ssrn
• National Geographic published an article exploring energy shortages in Japan

What are the most pressing issues for nuclear technology? What have we learned? And by the way, does your answer depend on how you perceive risk?

 

--Emily Meazell

Call for papers--LSU Journal of Energy Law and Resources

Louisiana State University Paul M. Hebert Law Center is inviting articles for its inagural issue of the Journal of Energy Law and Resources. Details regarding the submissions and deadlines are available here:

Download LSU Journal of Energy Law and Resources

~~DB~~

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:

• "Every second breath you take is provided by the ocean."


• "We have entered a new geologic age -- the anthropocene era."


• "The Gulf and other coastal waters have long been a dumping ground for human activities."


• "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."


• NOAA "has begun now issuing seasonal red tide alerts in the Northeast."


• "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."


• "It's not funded, but we have a national ocean policy."

"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council

• "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."


• "The economic benefit of the ocean is huge, and it is just beginning to be documented."


• "Everyone has a stake in the oceans."


• "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.


• "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.


• "Marine mammal issues will increasingly affect marine activities, especially shipping."


• "We need to balance that growing need for resources and food and energy with those areas that already have resources."


• "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

• "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."


• "The problem is we have one ocean but many governments."


• "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."


• "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."


• "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."


• "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.


• Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.


• "Australia is also using the Reef as a reason to engage in climate change mitigation."
• An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

In Case You Missed It -- Week of February 26 - March 3

• Chicagon, Midwest Generation, and the Chicago Clean Power Coalition announced an agreement to shut down old coal-fired power plants.
• The EPA issued a number of proposed rules that would approve state implementation plans to reduce regional haze.
• A New York Supreme Court upheld a localty's zoning ban on fracking.
• The D.C. Circuit held oral arguments on challenges to the EPA's GHG endangerment finding.
• The U.S. District Court for the Southern District of New York dismissed a suit by organic farmers against Monsanto for failure to meet the case-or-controversy requirement; the suit sought protection from patent infringement suits by Monsanto against farmers whose crops inadvertently acquire trace amounts of patented seeds or traits.