Environmental Law Prof Blog

Living the Good Life in the Anthropocene: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2023 were asked to consider what it means to live the good life in the Anthropocene. To frame the conversation, participants first considered the Stockholm Resilience Center’s concept of planetary boundaries. As the Anthropocene progresses, the Center has concluded that the number of planetary boundaries that we are crossing is steadily increasing, from three in 2009, when the Center’s researchers first introduced the concept, to six in 2023.

Planetary boundaries represent a safe operating space for humanity; crossing them, in turn, means that humans are changing basic attributes of planetary systems—such as biodiversity, climate change, freshwater use, and toxic loadings—to the point of risking the future of human civilization.

However, for the first time, in May 2023 in Nature, these researchers assessed not only the safe planetary boundaries but also the just ones. Considerations of equity and justice, the authors concluded, require that we re-think three of the planetary boundaries: nitrogen, which is critical for fertilizing crops but also creates water pollution, harmful algal blooms, and marine dead zones; aerosols; and climate change, which imposes disproportionate impacts on some populations.

The distinction between “safe” and “just” planetary boundaries raises several questions regarding how to conceptualize the “good life” in the Anthropocene. The ELC discussions in July 2023 and the essays that follow played with various conceptions of the “good”—from “enjoyable” to “moral”—as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like fresh water to amenities like outdoor recreation.

 Authors and titles of the posts:

• Karen Bradshaw, What Makes the Good Life?
• Rebecca Bratspies, Baking in Inclusion
• Michele Okoh, Reflections on Beauty in the Anthropocene
• Danielle Stokes, Governing for the Good Life
• Amber Polk, The Tragedy of Living in the Anthropocene
• Melissa Powers, Consuming Our Way to Clean Energy
• Karrigan Bork & Keith Hirokawa, Reallocating Environmental Risk
• Shannon Roesler, What the Many Meanings of Shelter Share
• Cinnamon Carlarne & Keith Hirokawa, Imagining Climate Havens in a Boiling World
• J.B. Ruhl, Eating Cheetos in the Anthropocene: Governing the Good Life at a “Whole of Consumption” Scale 
• Robin Kundis Craig, Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel  ​
• Sarah Fox, Consumption All the Way Down
• Ruhan Nagra, Green Colonialism
• Kevin Lynch, Breaking Our Consumption Addictions
• Jessica Owley, What Is the Good Life in the Anthropocene?
• Anastasia Teletsetsky, Inequity, Excess Commercialization, and Overconsumption in the Anthropocene: Two Very Modest Regulatory Proposals 
• Bruce Carpenter, Josh Galperin & Francis Hicks, Accessioning Joy

The Environmental Law Collaborative would also like to thank the USC Gould School of Law and the Vanderbilt Law School for their generous support of the July 2023 meeting!

--Robin Craig, Rebecca Bratspies, & J.B. Ruhl

Adapting to a 4°C World: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2021 were asked to consider the adaptation challenges of the worst-case climate scenario: a world that warms to 4°C by 2100. As environmental law professors, we remain dedicated to the study and support of laws and policies designed to mitigate greenhouse gas emissions and avert the worst-case scenario. But we cannot ignore what scientific studies and newer climate models show. The Paris Agreement’s goal to hold warming to 1.5° – 2°C above preindustrial levels now appears unrealistic. In the United States, regulatory inaction and political gridlock frustrate efforts to implement the decarbonization measures that we need now to prevent the warming predicted by climate models. At the international level, the commitment and cooperation necessary for dramatic emissions reductions also appear unlikely.

To frame and inspire discussion about the consequences of a 4°C world, participants read a recent article by two ELC members, Robin Kundis Craig and J.B. Ruhl, who argue that because a 4°C world is likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adaptation. A 4°C world is one marked by dramatic sea-level rise, devastating heat waves, extreme drought, increased flooding, food insecurity, and radical shifts in ecosystems and biodiversity. Some communities may not be able to adapt; they may simply have to move. Adapting our laws and governance structures to physical and social disruption at this scale requires transformative thinking.

In the blog posts we will share this month, ELC participants explore what it means to adapt to a 4°C world. Some posts highlight the inadequacy of current legal doctrines, planning policies, and governance structures to meet the adaptation challenges ahead. Others examine the need to rethink laws and institutions that govern ecosystem services and issues of biodiversity. And some focus on issues of social equity and environmental injustice. Although each post makes its own contribution, they share a deep concern for the future and an urgency to mitigate not only the emissions that drive us closer to 4°C, but also the serious harms that we will suffer if we fail to plan for the worst-case scenario.

Authors and titles of the posts to come:

• Karrigan Bork, Shi-Ling Hsu, & Kevin Lynch, Western Water Rights in a 4°C Future
• Melissa Powers, Designing the 4ºC Electricity System to Achieve a 2ºC Future
• Josh Galperin, Compensation at 4ºC Celsius
• Karrigan Bork, Room for Nature
• David Takacs, In a 4°C World, the Inexorable Climate Change-Biodiversity Nexus
• Michele Okoh, America Erased
• Cinnamon Carlarne, The Mutable Boundaries of a Worst-Case Climate World
• Sarah Fox, The 4ºC City
• Karen Bradshaw, Climate Change Lessons from a Disney Princess
• Keith Hirokawa, More Better Information as 4°C Preparedness: Ecosystem Benefit Flows and Community Engagement
• Jessica Owley, Harnessing Eco-Anxiety and Triaging for the Future ​
• JB Ruhl & James Salzman, Rawls@4°C
• Shannon Roesler, The Costs of Political Polarization and Gridlock
• Robin Craig, Contemplating Equity from the Deck of the Titanic: A Metaphoric Meditation for a 4°C World
• Clifford Villa, Letting Go of 2˚C, Letting Go of Race?
• Shi-Ling Hsu, Catastrophic Inequality in a Climate-Changed Future
• Katrina Kuh, Precommitment Strategies to Avoid the Justice Worst Case in the Climate Worst Case

- Shannon Roesler

Is It Time to Say Goodbye to Environmental Law?

Inara Scott  is an Associate Professor in the College of Business at Oregon State University

This is the twelfth  in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Besides being a legal scholar, I also write fiction. My first published book was a young adult novel, and it was in publishing that I became familiar with the problem of shelving. You see, before you can sell your book, you have to identify the genre. That designation tells booksellers and librarians where to shelve the book; for e-books, it identifies what category to put it in for online searching.

If you can’t label it, they can’t sell it.

Picking a genre determines how the book is marketed and who becomes the audience. Genres also carry deeply embedded connotations: for example, who do you picture reading romance novels? Who do you picture writing them?

The boundaries of genres can make it impossible to write and sell certain kinds of stories. Understanding this, authors consider where their book will be shelved beforethey write and modify their story ideas accordingly.  Until the 1970s, few books were written with teenage protagonists because there was no such genre as “young adult”—the genre of books for young people aged 12-18 wasn’t officially created until the 1960s.  

Like fiction authors, lawyers are trained to think about law in discrete categories. Interdisciplinary efforts may be viewed with skeptical, or even disapproving eyes.  As a professor teaching environmental law at a business school, I can say from first-hand experience that many do not consider me to be part of the “environmental law” community simply because of where I teach.

TheAnthropocene—and more specifically, climate change—offer existential challenges to the survival of humanity and life on this planet. Many instinctively turn to environmental law to solve these challenges. Unfortunately, I don’t think the challenges we face will be solved by items on the environmental law shelf. No, I believe we need to start fresh, create a new genre, and leave environmental law firmly in the past.

To explain why, let’s start with what the environmental law shelf currently contains. Most definitions of environmental law describe statutes and regulations that govern how people interact with the natural environment—the “natural environment” in this context being non-human species, plants, and natural resources. Environmental law is also generally understood to include pollution control and management of public lands and natural resources. The laws most would identify as the cannon of the environmental law genre (e.g., the Endangered Species Act, the Clean Air Act, and the Clean Water Act) focus on this relatively straightforward human-environment formula. These laws generally arose out of a perceived environmental crisis, a desire to protect the environment from human harm, and a need to ensure environmental resources were available for human consumption.

Over time, the popular understanding of environmental law, including this human-environment formula, created certain expectations for and limitations on the genre:

1)Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law. 

2)Environmental laws address narrow targets with narrow solutions. For example, the Endangered Species Act creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions—i.e., how do we protect biodiversity?  

3)Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color,  or people living in urban settings who don’t like the woods.

Point number three is perhaps the most dangerous aspect of the environmental law shelf. In a time of virulent political division, environmental law, like anything associated with climate change, is associated with one perspective and one political party.  Sadly, it is also associated with one race and one socioeconomic status, and negatively associated with strident activism.  Overall, the percentage of Americans identifying as environmentalists is down to 42% (from 78% in 1991).

So, at this point in history, what the public thinks of as environmental law is law that: does not address corporate governance or economic regulation; sees humans as separate from and antagonistic to the “natural world”; is narrowly focused on singular solutions in a complex world; and is not relevant to a diversity of perspectives or identities.

The danger here should be obvious from this list: many of the areas that currently fall out of the environmental law arena are precisely the ones that are essential to addressing the key challenges of the Anthropocene. Lawyers seeking to mitigate climate change mustembrace corporate law as a key part of their toolbox. Shareholder primacy and corporate law that fosters short-termism must be countered if we are to fight overuse of natural resources and a culture of unfettered consumerism. Smart infrastructure development and management of the electricity sector is essential to decarbonizing our economy.  Understanding how to rethink the field of economics could create a path for sustainable development.

To be clear, I’m not talking about simply rebranding the environmental law shelf. Rather, just like the genre “young adult” had to be created to allow for the flowering of teenage literature, I believe we need to develop a new term to describe the legal challenge ahead of us.

I suggest we call this new genre “Commons Law.”

By using the term “commons,” I hope to draw attention to a few issues. First, I recognize that the tradition notion of the commons is a resource shared by the public that is not privately owned. However, Commons Law will refer to regulation of public andprivately-owned resources. Why? In the Anthropocene, I believe we must confront the reality that the Earth is our commons, and whether activity takes place on private orpublicly-owned land, it can have significant impacts on all people.

Second, I hope to call up two environmental law stalwarts that may seem contradictory: Garret Hardin’s Tragedy of the Commons,  and Elinor Ostrom’s Nobel Prize winning work regarding the Governing of the Commons.  Hardin’s work is appropriate, because many would say we are living proof of the tragedy that occurs when communities share resources and individuals have the incentive to overuse and pollute, rather than conserve. Ostrom’s work is also appropriate, however, because she provides a response to Hardin, offering ways to govern shared resources that do not end in collapse of the resource and do not require privatization.

Commons Law must be broad, diverse, and big enough to contain seeming contradictions. It must recognize that creation of sustainable communities includes economic activity and must include, or even focus on, the regulation of this economic activity. It must address the governance of corporations that control the majority of global resources and threaten global ecosystems. It must also recognize the value in non-human species, biodiversity, and the preservation of spaces that are free from human development.

Commons law must be interdisciplinary and intersectional. It must avoid the trap of zero-sum environmentalism by casting a wide net for stakeholders and developing new legal tools that consider social justice alongside ecosystem protection. To meet the unique challenge of the Anthropocene we need to start thinking outside the environmental law shelf.

The cannon of environmental law deserves a proud place in environmental history for its contributions to our planet. However, it does not serve us well as a model for the Anthropocene. Moving forward, I believe we need to leave environmental law to the past and start fresh. Educate new lawyers, activists, and community members in a different way of thinking, planning, and legislating.

The Anthropocene demands nothing less.

Designing Law to Prevent Runaway Climate Change

Melissa Powers is the Jeffrey Bain Faculty Scholar and Professor of Law, and Director of the Green Energy Institute at Lewis & Clark Law School.

This is the ninth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

“Every system is perfectly designed to get the results it gets.” If that’s so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system, because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets—such as an 80% reduction in greenhouse gas emissions or 100% renewable power by 2050—are designed with loopholes and exemptions that make it unlikely that the targets will be met.   For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, we must create outcome-oriented climate and energy laws that ensure compliance. Otherwise, the slim chance we have to prevent runaway climate change will be lost.

U.S. environmental law is entering in its fifth decade, and while the existing legal system has produced significant improvements in air and water quality, it is not up to the task of addressing climate change. This is because U.S. environmental law is not end-goal-oriented, and the few laws that may seem to establish ambitious goals are not designed to meet them. Consider the Clean Water Act, which establishes the goal of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters,” so that every U.S. waterbody is fishable and swimmable. However ambitious that goal may seem, the permitting systems under the Clean Water Act are designed and/or applied to allow continued degradation of waterbodies, including those that are neither swimmable nor fishable due to historical and ongoing pollution and habitat destruction. The Clean Air Act’s goal of “protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population,” is too vague to be considered outcome-oriented. And implementation of the Clean Air Act focuses on balancing the economic interests of polluters with the public’s interest in pollution reduction. At best, this balance will produce deep emissions reductions where cost-benefit analyses support them, but the balance is subject to distortion—as the Trump Administration’s ongoing efforts to dismantle Obama-era environmental regulations reveal. Even the Acid Rain program under the Clean Air Act, which sets a final aggregate cap on sulfur dioxide emissions, uses a final target that was set based on politics,  not environmental needs. U.S. environmental law seeks to slow the pace of degradation or to gradually accelerate the rate of improvement. While it’s important that these laws are applied to greenhouse gases until we have better laws in place, it is also essential to recognize that environmental law will not, in and of itself, do the job of preventing runaway climate change.

Nor will state and local efforts, as currently designed, do the job. In response to the Trump Administration’s announcement that it will withdraw from the Paris Agreement and in response to the Trump Administration’s assault on dozens of U.S. environmental rules,  states and local governments have declared their intent to take a leading role in mitigating climate change. Their actions, while both commendable and necessary, are generally not designed to achieve decarbonization as an end goal. Leading states like California and New York have enacted scores of laws to reduce greenhouse gas emissions, but neither state has committed to energy decarbonization. California recently adopted a target of obtaining 100% zero-carbon electricity by 2045,  but the state does not have either a goal or a strategy for eliminating fossil fuels from its transportation or heating sectors. Several local governments, happily, have made commitments to decarbonize all aspects of their energy systems.  But, thus far, they do not have strategies to meet their commitments. In short, we lack both goals and designs for effective decarbonization.

We must change this approach. The United States and the rest of the world must quickly establish and achieve end goals for climate mitigation. Climate scientists have already told us what these end goals must be: for the world to have a chance of keeping temperature increases to tolerable levels, we must decarbonize our energy systems and, ultimately, achieve net-negative emissions targets through carbon sequestration. Global greenhouse gas emissions must stop increasing, immediately, and they must then rapidly drop, so that, by 2050, developed countries emit no greenhouse gases from fossil fuels.

U.S. lawmakers at the local, state, and federal (after the Trump Administration is out of office) levels must commit to complete energy decarbonization by 2050.  They then must design their decarbonization strategies to ensure they meet this ambitious target. Much like we expect architects to design buildings that will perform as expected, we need to expect our lawmakers and regulatory agencies to create decarbonization strategies that will achieve the goals. Rather than apply existing laws with the hope that they will eventually reduce emissions over time, we need to create legal systems that ensure success. If “every system is perfectly designed to get the results it gets,” it’s past time for the United States to adopt a design approach to decarbonization. We can’t afford to get it wrong.

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law, and ultimately to improve the environmental conditions of the world in which we live. 

In 2018, we watched the U.S. regulatory environment change rapidly, even as we witnessed the escalation of visible and profound impacts from climate change. Alongside these events, and with full knowledge of the limited time left in which to address existential environmental challenges, the question the group attempted to tackle at our collaborative meeting was whether environmental law as we know it is up to the task of meeting these ongoing, escalating, and perilous threats. 

Each of us has challenged ourselves to think deeply about where environmental law should be headed in the next decade or more, and how we might get there. The blogs we will be posting in the next two weeks discuss our individual conclusions about how we might reframe and reshape -- and ultimately, disrupt -- the environmental law landscape to better address the catastrophic, synergistic, and disruptive ecological changes portended by climate change, biodiversity destruction, and social inequality. We asked ourselves, what would it look like if we radically and fundamentally reoriented our environmental law and policy agenda? Is this possible, desirable, or both? 

As we are a diverse group of scholars and thinkers, our conclusions are by no means uniform, but they share a common thread: this is not time for business as usual. The system requires significant, potentially disruptive changes, some of which may make us profoundly uncomfortable. As you will read, Sarah Krakoff and Shannon Roesler ask what law would look like if we conceived of global climate change as a social justice challenge and accordingly remade laws addressing poverty, wealth distribution, public infrastructure, and health care, while Keith Hirokawa and Jonathan Rosenbloom would reorient adaption to climate change by heeding and disseminating legal strategies local governments are formulating. J.B. Ruhl argues that to confront the urgent need for climate change adaptation, environmentalists will have to compromise in strategic ways, while Inara Scott asserts that it is time to bid goodbye to environmental law and start fresh by reconceptualizing a more inclusive, more effective “commons law.”  

Continuing in this line of disruptive thinking, David Takacs suggests radically rethinking biodiversity laws before it is too late to preserve functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. Erin Ryan argues that with environmental laws under attack, we must think of creative, out of the box ways to defend it at multiple levels of legal hierarchy. Blake Hudson points out that many kinds of ecological disruption can be tied to land development -- where there has never been much effective law to disrupt in the first place. And in an essay that may surprise many, Robin Kundis Craig argues that in international environmental law, the role of the president may be overstated.  

Melissa Powers writes about the urgent need for deep decarbonization, with clear targets and strategies to achieve them, as Vanessa Casado Perez tackles the problem of rethinking water law to address inevitable conflicts over water shortages. Turning away from the public sector, Jessica Owley suggests an expanded role for private actors in forwarding the goals of environmental law. Importantly, Katrina Kuh challenges environmental lawyers look more closely in our mirrors to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a “malignant normality” that deepens the climate crisis.   

We hope these essays disrupt your thinking in provocative, productive ways, and look forward to opening a dialog with you about how we can reframe, reshape, and ultimately disrupt environmental law to meet the challenges of our day.  

 

Local Fracturing Bans Preempted in Colorado

Following a general trend toward state preemption of local control over oil and gas development, the Colorado Supreme Court issued two opinions today finding that Colorado law preempts local hydraulic fracturing (“fracking”) bans and moratoria in Longmont and Fort Collins.  The state constitution of Colorado gives local governments home rule authority, with article XX, section 6 providing that local law shall “supersede” any conflicting law of the state.  This suggests that local governments in Colorado have relatively strong local powers.  But the Colorado Supreme Court has long held that local laws may supersede state law only when the laws relate to “matters of local concern,” such as a local sales tax.  When local laws involve matters of statewide concern, or matters of mixed state and local concern, state law supersedes the local laws if the local laws “conflict” with state law or are otherwise preempted.

Following its earlier Voss decision, the Colorado Supreme Court determined in its two cases today that hydraulic fracturing is a matter of mixed state and local concern, applying a four-factor test: 1) the importance of statewide uniformity of regulations, 2) extraterritorial impact of the local regulation, 3) whether the area has been traditionally regulated by state or local governments, and 4) whether the Colorado constitution specifically indicates that the regulatory area should be governed by state or local governments.  With respect to the importance of statewide uniformity, the court noted that oil and gas sits in shared reservoirs underground, and that a local ban could impact the many rights of individuals who have an ownership interest in that pool of oil and gas—including rights in other local jurisdictions.  Furthermore, a patchwork of local bans could make fracturing less productive and could cause “waste” of oil and gas, meaning that the maximum potential amount of oil and gas would not be extracted when fracturing occurred.  The court also found that local fracturing bans impact other jurisdictions—possibly making it more expensive to produce oil and gas by forcing a company to drill outside of jurisdictional limits to access underground reserves—and possibly causing a “ripple effect” that encouraged other local governments to implement similar bans.  For the third factor, the court noted a conflict.  The State of Colorado has traditionally regulated oil and gas development, but local governments have traditionally regulated the types of uses allowed on land within their jurisdiction (including oil and gas uses).  Thus, the court found that there is mixed state and local interest for this factor.  Finally, the Colorado constitution does not make clear whether fracturing control should be within state hands or whether local governments should have exclusive land use authority.

The court then went on to determine whether state law preempted local control, using a conflict preemption analysis.  In the Longmont case the court noted the importance of local land use control over oil and gas, pointing to the General Assembly’s having “recognized the propriety of local land use ordinances that relate to oil and gas development.”  And the court emphasized that the State of Colorado lacks exclusive control over regulating the technical aspects of oil and gas development.  However, the court noted that the Colorado Oil and Gas Conservation Commission regulates certain aspects of fracturing—indeed, the court perhaps exaggerated the extent to which the state regulates fracturing. For example, in the Longmont case the court characterized Colorado’s requirements for disclosing fracturing chemicals as requirements that “regulate the fracturing process.”  This is perhaps a reach because the requirements are merely informational and do nothing to substantively limit the fracturing process.  However, the court also pointed to Colorado’s regulation of the disposal of waste from fractured wells. It then went on to find that local bans on fracturing and the storage and disposal of fracturing wastes “materially impede” state law, which allows fracturing and regulates it. It thus determined that state law preempts local moratoria and bans relating to fracturing.

These opinions follow similar preemption of local regulation and bans on fracturing in Louisiana (Energy Management Corp. v. City of Shreveport, 397 F.3d 297 (5th Cir. 2005)), New Mexico (Swepi v. New Mexico, 81 F.Supp. 3d 1075 (D.N.M. 2015)), Ohio, Oklahoma, Texas, and West Virginia. The exceptions to the trend are New York and Pennsylvania. 

Many of these cases, including those decided today, have not yet fully grappled with the challenge of reconciling strong home rule authority over land use matters with a state's interests in regulating oil and gas development. Instead, the courts tend to promptly find preemption, concluding that a state's interests win out over local control despite the state's having previously granted extensive home rule authority to its local "arms."

-Hannah Wiseman

Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)

As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.

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China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?

News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.

 

Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.

 

Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?

--Deepa--

A Couple of Takes on Climate Winners

Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.

I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here. 

I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world. 

- Michael Burger

 

Shell, the Arctic, and the Classroom

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.  

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff.  Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.  

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

- Michael Burger

What's New in Fracking (Fracing, Hydrofracking, Hydraulic Fracturing) Law?

Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace.  The law, too, is quickly changing.  If you're teaching or writing in this area this fall, I've listed some of my favorite resources below.  Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.

The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required.  These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons.  This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago.  The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks.  All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process. 

How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves.  The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed.  The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG."  The project is still under construction.

The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically.  There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.  

Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time.  Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations.  The technique has, of course, changed quite a bit since then.  The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed.  Other older fracs used mostly water.  But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques.  Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions.  Acid injected before the water can also help form fractures.

The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers.  The companies fracture each interval, which greatly enhances well production. 

The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments.  But the regulation of oil and gas development is very much in flux. 

Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions.  The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works.  The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level.  Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.

In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming.  The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing.  One USGS study in Arkansas found no impacts on water quality from "gas-production activities."  The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.

The Fish and Wildlife Service has also begun to be more active in this area.  On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.

State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals.  In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules.  Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.

Local and state:  The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells.  A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development.  A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field.  The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.

Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary.  If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.

Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases.  In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:

"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not  protected by the “rule of capture,” but rather constitutes an actionable trespass."

There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable.  When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior."  See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA.  United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).

Science:  Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio.  Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers.  D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal."  For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.

With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage.  The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius.  Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs.  And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.

Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document.  For impacts on local economies, Penn State has a number of good sources.  And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.

And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas.  A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.

-Hannah Wiseman

China Environmental Experiences: Table of Contents

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China.  A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays.  That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in China.  “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

China Environmental Experiences #2: Rocky Mountain Arsenal.  “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”

China Environmental Experiences #3: Breathing Air with Heft.  “…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.…”

China Environmental Experiences #4: Wifi Without Potable Water.  “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….” 

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “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.…” 

CEE #6: Environmental Philosophy and Human Relationships with Nature.  “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity.  “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #8: Environmental Protection as an Act of Cultural Change.   “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”

CEE #9: Post Script: Returning from China to the U.S.   “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

--Erin Ryan

What India Thinks about Climate Change

I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”

We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”

I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.

Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:

Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.

(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)

But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.

Here’s another excerpt from the report’s “Highlights”:

• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.

• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.

• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.

• 70 percent favored a national program to teach Indians about global warming.

This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)

But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.

Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at 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

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 

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

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

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