Saturday, November 17, 2018
David Takacs is a Professor at University of California Hastings College of the Law
This is the thirteenth and final essay in a series from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Biodiversity is disappearing rapidly, portending grave results not just for nonhuman species (and the populations and individuals that comprise them), but for the functioning ecosystems they constitute, and the human communities that depend on diverse species and thriving ecosystems -- that is to say, all of us. It is perhaps the single greatest problem our species faces. Even though 15% of the Earth’s land has designated formal protection, about 1/3 of that land “is under intense human pressure,” and only ¼ of Earth’s land surface remains free from substantial human impacts. Such degradation harms the wellbeing of over 3 billion people, and consumes more than 10% of annual global gross product through loss of biodiversity and ecosystem services. Only 13.2% of oceans are “wilderness,” and only 4.9% of those areas are within protected areas.
While cultivation (agriculture, ranching, forestry) and direct exploitation remain the gravest harms to biodiversity, climate change increasingly threatens biodiversity as species are unable to adapt to a rapidly and chaotically changing world: Our current, static methods of conserving species become increasingly inadequate if we do not preserve or restore habitats species will need in a climate-addled future.
We have made strides making laws that constrain humans from wantonly destroying everything. The need for conservation is a customary norm around the world. Nearly all nations have acceded to the Convention on Biological Diversity, and nearly all nations make some attempts to preserve their genetic heritage, with laws that sustain endangered species and/or protect land important to vital ecosystems and the biodiversity they sustain.
But the cataclysm of species annihilation proceeds apace. According to the IUCN over 26,000 species are threatened with extinction, including 41% of amphibian species, 24% of mammal species, and 13% of bird species face grave extinction threats.The human population is projected to grow to nine billion by 2050 and likely to eleven billion by 2100, while the average person’s buying power and consumption will grow by 150%.Our laws to conserve are not keeping pace with our drive to destroy.
To stave off a disastrous disruption in human and nonhuman survival, law needs to evolve quickly andradically. I am not challenging current legal foci on endangered species and protected lands, which, at least, concentrate easy to identify entities (I do know what a bald eagle is, but might have trouble drawing the parameters of a given ecosystem type), and has meant that some species that would otherwise be gone still live alongside us. We can certainly exponentially ramp up what we’ve been doing. Nor am I advocating one or more of the following legal disruptions as the ones we oughtto choose. But we do have to rethink, drastically, our current approaches to living alongside biodiversity if we are to have ample biodiversity along which to live, and if human civilization is to be sustained in some recognizable form.
E.O. Wilson and other prominent conservation biologists proposed setting aside “half for nature.” Protected areas do help biodiversity survive. If done smartly -- with careful planning to conserve megadiverse areas that human communities depend upon for local and global ecosystem services -- biologists estimate we could steward 85% of nonhuman species while sustaining the human communities that depend upon them.
This would also require that the law evolve from a static conception of species and landscapes -- put a fence around an area, manage species in forms and places they’ve long been -- to a more dynamic form grounded in pinpoint adaptive management. We’d need to think about maintaining evolutionary potential outside of formally protected areas so that species could migrate, and develop nimble systems for prioritizing high level protection as areas formally protected for species no longer suit their needs in a changing climate. Law would need to specify performance standards for areas and species of concern, i.e. ecological indicators or benchmarks that must be met, and if not, required pathways to change how we’re doing what we’re doing. Managers would constantly be measuring, monitoring, reporting, and verifying in accordance with the standards. This would also result in greater employment for local people as biodiversity managers, green jobs rooted in caring for the Earth.
Current efforts to conceptualize and operationalize “Nature’s Contributions to People” broaden our notion of “ecosystem services.” Including harder-to-quantify contributions of biodiversity to our well-being may result in being more inclusive in who gets to define what those contributions are and thus what should be preserved. For selected areas, law might provide management autonomy with transfer of property rights for local guardians with a track record of care and stewardship. Law would need to be nimble and place-specific for whom are the legally mandated managers, who monitors that performance standards are being met, and what are the legal consequences for derogation from those standards.
Concerted, focused, effective efforts to stave off biodiversity loss will likely be very, very expensive. To afford this, particularly in the global South, (but even in the North, where no country comes close to preserving “half Earth,” or are successfully staunching species loss) would be to take the legal principle of Common but Differentiated Responsibilities (CBDR) seriously. Wealthy countries (and individuals) have become wealthy by exploiting lands and species of the South (or by exploiting other citizens) without proper compensation. The same entities have polluted the global atmospheric commons without paying for the externalities of that pollution. Laws implementing CBDR would alleviate the poverty that requires the poor to degrade nonhuman landscapes, and to pay for land and species conservation, including employment for a cadre of conservation professionals and paraprofessionals. All of this could be abetted by negotiating a new multilateral environmental agreement to replace the weak voluntary commitments embedded in the Convention on Biological Diversity, or by amending that agreement to put some teeth into it, including requirements to implement CBDR aggressively.
Law hasbegun, increasingly, to ask those who degrade the global environment to pay for such degradation. Under the aegis of “polluter pays” principle, REDD+ (Reducing Emissions from Deforestation and forest Degradation) allows greenhouse gas polluters to “offset” their pollution by investing in reforestation or avoiding deforestation, allowing trees to work their photosynthetic magic by sucking up CO2. Biodiversity offsetting takes this logic one step further, by asking developers to offset damage to targeted species or ecosystems by paying others elsewhere to conserve those species. Both practices are controversial; but to stave off mass extinctions, when done right and on a large, monitored scale, market mechanisms could inject many billions of dollars into government conservation coffers, particularly to incentivize conservation on private lands (where otherwise conservation would not occur). State of the art collaborations between regional planners, social scientists, community groups representing disparate interests, climatologists and conservation biologists could predict where species and ecosystems might likely migrate, where human communities are likely to expand, and to prioritize migration corridors that will allow natural communities to adapt to climate change: Market mechanisms can direct and prioritize conservation in these areas.
Desperate and wildly ecologically changing times require us to rethink all of our notions of what “belongs” where. Law could permit and define parameters on aggressive conservation translocation. In a paradigm change from traditional static notions of biodiversity conservation, we might assist colonization andintroduce species to where they’d historically been, exporting species from places where habitat no longer exists or soon will not exist due to changing climates or growing human demands. These can be reintroductions to where species have been and now disappeared, or reinforcement of individuals into existing populations of that species. The “rewilding” movement focuses on top carnivores whose (re)introduction revitalizes ecosystem functions and augments species diversity. Such programs could also consider introducing species that have not existed in a place, that would be “invasive,” but nonetheless might have some chance of fulfilling ecological roles and adapting to the onslaught of climate change.
And given that we are already radically altering what may exist and where, we might use genetic manipulation or “rescue” for endangered species. Taking this one step further, we could resuscitate extinct species through genetic manipulation. So, for example organizations like Revive & Restore seek “de-extinction,” the return of the woolly mammoth, passenger pigeon, and heath hen through tissue biobanking, intense genetic (re)sequencing, and cloning.
A different line of thinking suggests that radical conservation interventions -- put a fence around half the Earth’s surface, manipulate the genetic endowment of life -- are dystopic interventions that totally miss the point that poverty and inequality drive biodiversity loss, and that “put a fence around and protect it” conservation lead to human dislocations, political upheaval, and general human misery. The only sustainable way to maintain nonhuman communities (and thus human communities) is to change the paradigmatic drive towards ever greater economic growth that inevitably degrades ecological and human capital, and to transfuse wealth from overconsuming rich to disenfranchised poor, North to South.
The ultimate sustainable route to biodiversity conservation is through what I call “deep equity,” i.e., a fundamental change in what we value and how we operationalize those values in law. Deeply equitable solutions maximize and synergize individual, community, and nonhuman health and potential. Such values, as they become deeply rooted in societies, would also become deeply rooted in those societies’ laws, creating a virtuous circle. One such value change might be reflected were we to give various different biological (or nonbiological) entities fundamental rights, reflecting our expanding conception of beings to whom we owe ethical obligations, with laws implementing those obligations. Or, simply, the wealthy need to consume much, much less than current rates, reflecting the urgency of our situation.
But law evolves slowly, and we are unlikely to pursue many of these in the short term, and in the long term it may be too late to preserve large swathes of functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. And that is the ultimate disruption that environmental law has thus far been ill-equipped to prevent.
Thursday, November 15, 2018
J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.
This is the tenth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero. Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.
I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.
The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.
To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy” rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights, but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.
Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.
So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.
Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.
Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.
Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic. Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable” standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.
Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for. Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.
Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis. EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7, and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.
Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.
These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.
I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.
Tuesday, November 13, 2018
Vanessa Casado Pérez is Associate Professor of Law and Research Associate Professor of Agricultural Economics at Texas A&M University School of Law
This is the eighth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The aphorism “water is the new oil” is now truer than it has ever been. While many use the phrase to suggest that water is as scarce and valuable as oil once was, it is also true in another sense: speculation in water markets now rivals speculation in oil markets. Oddly, however, water scarcity has not translated into a higher price for water, as it has done in oil. But this anomaly may be on the verge of changing as international investors start to enter the business of climate change. From oil tycoons like T. Boone Pickens to international hedge funds, investment in all things water is on the rise. And while many deny climate change, the market does not. Since climate change is widely expected to induce scarcity in water supplies, business investments in the water market are increasing rapidly.
The alarm has gone off. Those who believe markets should not commodify water are appalled by the role that investment moguls play: all the investments in the water business may lead to price increases for water. There is some merit in valuing water as a scarce resource so that we do not misuse it. The more expensive it is, the shorter our showers would be and the more thoughtful the choice of crops and irrigation techniques will be.
But using the market to allocate water also gives rise to two concerns: the affordability crisis for low-income populations and the inability to capture certain intangible values, such as environmental protection, in a single monetary price. The first concern is often answered by saying that the amount of water needed to satisfy our basic needs is around 1% of the total water used. We could let the market deal with the rest and figure out how to allocate the 1% cheaply. Environmental regulations, such as water quality or minimum instream flows, could address the second.
While the answers to these concerns may not be reassuring, we should take comfort in the fact that water is somewhat speculation-resistant, at least compared to oil. Unlike oil regulation, the regulation of markets for water rights has built-in mechanisms to prevent speculation. These constraints in water markets have driven investments towards related industries, like water conservation technology or reuse.
Water rights can be traded in the Western United States and in other jurisdictions such as Australia or Chile. Trade includes leases and sales of water rights that give the buyer the right to use water if it is available. A common transaction might be one between an agricultural right holder and an urban consumer, because the latter often has a higher willingness to pay and a less elastic demand curve. In the US West, these types of transactions have brought flexibility to water allocation systems, where the majority of water rights were allocated when agriculture was the main economic activity and large cities and suburban areas with luscious lawns had not developed. Those transactions should make the farmer realize the opportunity cost of using water. Transactions are subject to different levels of control. First, transactions are subject to administrative review. Transactions cannot injure third parties or the environment. Water rights are defined across several variables, including the point of diversion and the type of use. A transaction will normally imply a change in either or both of those variables and is likely to affect third parties.
Another layer, and more relevant for the purposes of speculation, is the forfeiture provision included in all prior appropriation states and many other jurisdictions. These forfeiture provisions mandate that holders of water rights use the water. If they don’t use it for a certain period, usually around 5 years, they may lose the water right.So unlike with real estate or stocks and bonds, where owners can wait for the market to peak and then sell their assets, in water markets, owners cannot engage in this kind of wait-and-see. That said, if water becomes valuable enough, investors may find a way around these rules. One company, Water Asset Management, is taking that route—considering land an accessory. It focuses on water itself but to get to it, it buys land and it tries to make use of the land to break even. While others have not invested in water rights, they have invested in groundwater or water reuse, which profit from water scarcity.
The question is whether there is something that water law could do to stop big players from dominating the water market broadly understood beyond the forfeiture provision and the approval requirements. It can. Furthermore, water law may be able to target the surrounding industries that investors are interested in. First, regulators could limit the number of shares a single entity could accumulate. One of the main fears is a market dominated by big players. While antitrust regulations are set up to deal with monopolistic practices that harm the consumer, water law can take a page from other natural resources markets and avoid concentration by limiting the amount of water rights that can be accumulated in the same hands. In fisheries’ “individual transferable quotas” programs, there are limits on the shares of the total allowable catch that a single ITQ owner can acquire. This should prevent the concentration of the agricultural industry in a few hands, mitigating the concerns about displacing local farmers.
Second, groundwater should be subject to a permit system like surface water is. Investment companies are keen on exploiting lax regulations and have noticed that in many places groundwater may be more readily accessible as an investment. The separate regulation of a unique resource of surface and groundwater denies the science and makes both, given their interconnection, overexploited.
Third, wastewater regulation needs to be properly designed. As it stands today, return flow belongs to the user who diverted the water. A city may have a water right and divert water from the river. The city does not consume all of it. It usually treats the wastewater and sends it back to the river, where downstream users use it. But if a city decided to reuse wastewater before bringing it back to the river, it could do so, leaving downstream users without the water they have relied on for decades. In some states, like Arizona, cities may be able to not only re-use it in their area but sell the water as a commodity because cleaned up wastewater is considered a new product. While incentives to invest in reuse are paramount, water regulations need to better address the effect on downstream users and the ecosystem needs.
An adage seems appropriate to close this essay. Mark Twain purportedly said that “Whisky is for drinking and water is for fighting.” Water scarcity will certainly cause fights as there will not be enough water for all users. Given the business of water in times of climate change, the question that lingers is whether small water right holders and the environment can put up a fight against these powerful businesses. The three water law measures stated in this essay may be able to help.
Disruption as Opportunity
Jessica Owley is Professor of Law at University of Buffalo Law School
This is the seventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
- Environmental Disruption.
The world has always been full of disturbances, alterations, and disruptions. This has been particularly true when examining the ecological conditions of the Earth. Our planet has undergone many changes, even some drastic ones. Yet, the current rate of environmental disruption is unquestionable and unprecedented. Climate change is clearly the major disruptor, changing our atmosphere, our ocean currents, and our ecosystems. Humans are a particularly destructive species though and even without the implications of climate change, we are disrupting the environment. We convert species habitat. We pollute rivers. We overhunt. Our current historical environmental atrocities, however, seem trivial in the context of climate change. Particularly tricky is the unpredictability of climate change impacts and intensities.
- Legal Disruption.
Complicating the environmental disruption is an increased disruption of the American legal system. In the 1970s, the federal government began acknowledging environmental harms in our country and creating legal strategies to combat them. The goal of the Clean Air Act (1970) is to prevent and control air pollution. The Clean Water Act (1972) seeks to eliminate the discharge of pollutants into the nation’s waters. The Endangered Species Act (1973) recognizes the negative impacts of humans on the environment and seeks a “means whereby the ecosystems upon which endangered species … depends may be conserved.” And with the clearest acknowledgement of human impacts on the environment, the National Environmental Policy Act (1970) recognizes “the profound impact of man’s activities” on the natural world and sets a national policy to “prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [hu]man[s].”
While the effectiveness of these laws and the strategies they adopted is open for debate, they represented an awareness of environmental harm and a need to combat it. All of these statutes and others are now under attack from the Trump Administration and the Republican Congress. The Administration is seeking repeal and revision of the statutes along with changes to regulations and agency policies. Beyond the laws on the books, the Administration is also disrupting federal environmental law by dismantling the agencies that carry out those laws. The number of employees is shrinking along with departmental budgets. Science posts are being removed or left unfilled and scientific reports and language specifically prohibited or hidden.
While the assault on the panoply of existing federal environmental programs is disheartening, federal climate change policy is truly depressing. In 1992, world leaders (along with many others) met in Brazil and acknowledged the intense environmental, economic, and social problems caused by global climate change. Agreeing that the cause was “anthropogenic,” President George Bush signed the agreement and applauded the countries of the world in taking quick action to combat the serious problem of climate change. Despite this statement (and the U.S. role in shaping both the initial agreement and subsequent accords), the federal government has never been a true leader in the fight against climate change. However, the Trump Administration’s actions in this realm are so radical as to again merit the label disruptive. Shortly after taking office, Donald Trump announced withdrawal of the United States from the Paris Climate Agreement. Even more insulting, the only significant U.S. delegation at the last conference of the parties to that 1992 treaty preached increased use of fossil fuels. As with the disruption to our environment, the disruption to our environmental laws is unprecedented.
- Disruption as an Opportunity
The real conundrum for environmental activists and humans who care about the world is determining what to do in the face of this disruption. The paragraphs above paint a bleak picture and suggest that disruption is doing significant harm. A challenge then is whether we can turn that attitude on its head and make these disruptions opportunities. At our 2018 ELC meeting, Vanessa Casado Perez noted that crisis, hitting rock bottom, is what really spurs human action on environmental issues. If things are really falling apart at the federal government, maybe this disruption of environmental law will trigger new energy and action from other sectors. Disruptions in innovation are changes to technologies that can help sectors (and sometimes even societies) leap ahead to a new level. Creative ideas lead to new solutions.
One sphere where this environmental and legal disruption is inspiring action is in the private sector. While Inara Scott reminds us that the business sector can be a force for positive change there is also a strength in individuals acting on their own or joining force with the power of nongovernmental organizations. In this light, a turn to the private seems both logical and sensible. Citizens seek to fill in the gaps left by a withdrawn federal government. It is unclear whether they can work as effectively toward reducing the harms of ecological disruption, but in a time of legal disruption their efforts gain prominence. Three examples highlight this trend.
Citizen Science and Information Protection: As government agencies began scrubbing their websites of environmental information, particularly discussions of climate change, others began archiving the information and making it available. Private organizations like the Environmental Data and Governance Initiative formed shortly after information began disappearing from public websites. Groups that had formed earlier for other reasons (like associations of librarians) also took up the cause of protecting and providing information when they saw the need arise. Additionally, while the EPA may be employing fewer scientists, people across the planet are stepping up and collecting data to aid in scientific research and environmental monitoring. The rise of the citizen scientist is an innovation that can improve environmental information and outcomes if deployed correctly.
Increasing Support of Environmental NGOs and Land Trusts: After the election of Donald Trump, donations to environmental advocacy organizations rose. Public attention to environmental issues can be seen in events like the March for Science and the Peoples Climate Movement. Gallup’s most recent polls show concern for the environment growing in the United States, even as fewer people identify themselves as environmentalists. Land trusts are an interesting part of this trend. Like other environmental organizations, they also saw their membership numbers and dollars increase post-Trump. Their focus differs from traditional environmental advocacy organizations as they seek to meet their conservation goals through protection of individual parcels and working with property tools. By purchasing land and rights in land, they seek to prevent development and conversion of land to uses that diminish ecosystem services and amenities. Working with private landowners, they often bring new people into the conservation movement. Through working with property rights, they create restrictions that are more durable than federal regulatory mechanisms.
Citizen Suits: Finally, despite a hollowing out of our environmental laws, activists are drawing upon the citizen suit provisions contained in many of our key environmental statutes. While there have been some proposals that would impact some of the fee-shifting provisions of citizen suits, neither Congress nor the Executive branch has suggested repealing citizen suit provisions or revising the Administrative Procedure Act, which often provides the hook for environmental litigation. Law firms are preparing for an increase in environmental citizen suits and the environmental activists seem happy to comply. Thus, we can still look to our 1970s law for some solace even though we must acknowledge the standing hurdles for environmental citizen suits are nontrivial.
These examples illustrate how energy and innovation by private actors can be part of the story of response to the current disruption of environmental law. Taken together with other examples and proposals in these essays, they can provide us with a way forward if not quite a way out.
Saturday, November 10, 2018
Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School
Shannon Roesler is Professor of Law at Oklahoma City University School of Law
This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”
But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.
That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.
Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”
If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.
Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.
In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”
So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.
To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.
November 10, 2018 in Air Quality, Climate Change, Current Affairs, Governance/Management, Law, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink
Friday, November 9, 2018
Blake Hudson is Professor of Law and the A.L. O'Quinn Chair in Environmental Studies at the University of Huston Law Center.
This is the fifth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
The theme of the 2018 Environmental Law Collaborative, “Environmental Law: Disrupted,” effectively captures the way in which federal environmental law has been seemingly turned on its head under the current administration. It truly feels like a disruption, as if nearly 50 years of environmental progress is not just being halted, but is at risk of being reversed, even on issues that in recent decades seemed settled—like having safe air to breathe and safe water to drink. Of course, we have seen this play out before, such as when Ronald Reagan was first elected and began the rollback of federal environmental protections. But partisanship is much more acute today than it was even then, and the disruption seems to have an air of permanence about it, or at least an air of long-term persistence.
In light of this disruption, many are calling for an increased reliance on the next line of defense, state governments. It is an understandable position, given that some states have demonstrated an interest in addressing environmental problems more broadly, as well as the political will and administrative capacity to do so. Yet for many more states, particularly in regions of the country like the Southeast (where I am from), an understanding of the state’s role in protecting citizens from environmental and associated economic harm, and the development of the political will and institutional capacity to carry out such programs, feels quite remote. In these locations it is arguably not much further developed than it was when the state of Ohio seemed content to let the Cuyahoga River burn in the 1960’s.
But what about the areas of law where there never was a comprehensive, ordered legal approach already in place to be disrupted?—the legal fronts where states have yet to comprehensively exercise their authority to protect the environment, and where the federal government has little to no regulatory safeguards in place? Such is the case with land development that impacts natural resources, and the dearth of policies in place to comprehensively and effectively deal with the scope of the problem. In this space there really cannot be a disruption of the legal regime because there never was a meaningful evolution or progression towards comprehensive environmental safeguards to begin with.
Control over the paving of landed natural capital with development in the U.S. remains an uber-decentralized mishmash of policy approaches (at least in places where there are any policies actually implemented). Land use regulation is the “quintessential state and local power,” as articulated by the U.S. Supreme Court. Thus, the fifty states hold the keys to how land development proceeds, with little input from the federal government (except in the limited circumstances where an endangered species or a wetland connected to navigable waters is present). Most states, in turn, often leave decisions over land use development to the 88,000 subnational governments that stretch across the U.S.—that is, unless the states do not like the way in which local governments are trying to control land development and prevent environmental harm, in which case they can preempt those efforts (here and here).
While the federal government refuses to enter the regulatory space, land development impacts many of the targets of federal environmental regulation. Land development affects water quality (the Clean Water Act), air quality (mobile emissions under the Clean Air Act), and the driver of species decline, habitat destruction (the Endangered Species Act). So the subject matter of federal environmental law could be addressed more effectively if state and local governments engaged in better land use planning.
Considering the lack of federal involvement, and an ad-hoc, inconsistent approach to land use planning at the state and local level (with southeastern states being exceptionally lax regarding land development controls), urban sprawl proceeds apace, and natural capital is being replaced at a profound rate. While some jurisdictions have engaged in innovative land use planning and development, and gains have been made on some fronts, until society begins to view development per se as a complex, “super-wicked” environmental problem, we will not maintain a sense of urgency along policy fronts to address the problem’s scope. We will keep addressing the symptoms of the land development problem (endangered species, poor water quality, poor air quality) rather than finding a cure for the disease.
While explication of the minutiae is beyond the scope of this post, I am currently working on a project developing a typology of factors that contribute to the wickedness of the land development problem (stay tuned). These include the challenges of collective action unique to the land development sector; corporate design of that sector; legal institutional hurdles; economic drivers; intersecting federal policies; property rights; political economy; time/behavioral science/spatial and geographic factors; population/demographics; and an ever-changing natural environment in a time of climate change. Articulating and exploring these factors will be important to both change the dialogue on land development as an environmental problem and to more adequately inform policy responses to address the problem.
In short, the current state of affairs at the national level is a dramatic disruption of environmental progress. But we cannot forget the areas where holistic environmental progress has never been achieved. In a world of growing populations and economic growth tied quite directly to the replacement of natural capital with human-built capital (Texas, a state of 25 million people in 2010 is projected to double to 50 million citizens by 2050 due to rapid economic expansion), we can no longer take our country’s vast expanse of land for granted. We must do better to plan and control growth, the development of our land, and the replacement of our natural capital. If not, we will eventually find the loss of those environmental resources quite disruptive to human progress and well-being.
Thursday, November 8, 2018
Keith H. Hirokawa is Professor of Law at Albany Law School
Jonathan Rosenbloom is Dwight D. Opperman Distinguished Professor of Law at Drake Law School
This is the fourth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
A brief perusal of the history of environmental law illustrates the ways law might be employed to suffer through a constant state of disruption. In the past, we have largely relied on state and federal environmental legislation and regulation to accomplish the task, in part because of a fear that local governments will “race to the bottom” and take a competitive advantage against their more regulatory-prone neighbors. We would suggest that the reliance on state and federal regulation, as well as the lack of confidence in local governance, has served to undermine sincere dialogue on the potential of local government to govern well both within and across boundaries.
The present circumstance of climate and ecological disruption will provide an opportunity to revisit the issue of local environmental law. Specifically, climate change will require more engagement with local governments because of the local stakes involved. Given current and likely future disruptions from rising sea levels, heat waves, and storm events, local governments will be faced with coastline insecurity, vulnerable infrastructure and difficulties in meeting essential human needs, geological instability, uncertain ecological changes (such as invasive species), water scarcity, and population migration. Such changes will permeate social, economic, and environmental expectations in every community. Given the role that local governments play in responding to challenges to local quality of life and security, local governments will inevitably become players.
There are and will be instances where local governments manipulate social, economic, and environmental resources to protect their own. But there are and will be examples that illustrate the contrary. Some local governments forego regulation of extraction and resource development, while others will adopt more comprehensive land use regulations that maintain ecosystem services and other quality-of-life determinants. But differences in local governance are neither surprising nor unwarranted – governments illustrate legitimacy though responsiveness to local needs, and local needs differ across boundaries. More importantly, norms and values develop in very local ways, and it would be a mistake to disregard value differences, even at minute levels, that occur across borders.
Local is not only a circumstance that is relevant to understanding particular governmental actions. Local also provides a framework for understanding common concerns such as shared resources, regional circumstances, and intergovernmental cooperation. And, in the context of disruption, local can play a significant role in at least the following four categories: responsiveness; baseline information generation; innovation research; and normalization.
- Local is Responsive to Change
Environmental disruption is coming and, in fact, is here. Law will have to develop new strategies to face the new challenges and immediacy will be a factor. Government strategies should be designed to launch on short notice. It is easier to experiment with new regulations and approaches at the local level: first, because the closeness of local government to governed communities demands it; and second, because the scale of local governance makes debate, passage and implementation of new approaches easier.
Local governments are acutely responsive to social, economic, and environmental change for good reason. Regardless of how such disruptions are perceived on a regional, state or federal level, they are felt locally. The invention of the elevator and automobile fundamentally altered the role and potential of urban areas to provide homes and economic opportunities. In turn, such disruptions helped shape attention to infrastructure and governmental service needs. More recently, local governments have expeditiously responded to water shortages by prohibiting water waste, restricting specific water uses, and requiring installation of efficient water fixtures and grey water use in new construction and building renovations. Similarly, local governments have controlled stormwater flows by implementing measures for permeable pavements, green roofs, and rainwater harvesting. See, e.g., Chatham, MA, Protective Bylaws § 4(B) (2016) (floodplain development and permeable driveways);Denver, CO, Code of Ordinances §§ 10-300 to 10-308 (2017) (green roofs);San Diego, CA, Rain Harvesting Rebate Program (cash incentives rain barrel installation).
- Local as Source of Baseline Information
As a matter of course, local governments gather and assess information on local vulnerabilities to disruptions. Local governments keep a watchful eye on natural and built infrastructure assets, the availability of nature resources, housing stocks, access to food and energy, and population dynamics. Local governments often require permit applicants to provide critical information on development elevations, habitat values, and slope stability. Likewise, local planning and development review processes have resulted in a wealth of information on groundwater budgets, canopy cover, and buildable lands. Other local governments require energy benchmarking and audits for larger buildings and governmental operations. See, e.g., Atlanta, Georgia Code of Ordinances § 8-2002 (2016) (requiring both energy benchmaking and auditing for certain public and private buildings); Denver, CO Code of Ordinances § 4-53 (2016) (commercial building benchmarking and reporting); Seattle, WA Municipal Code § 22.920.010 (2010)(requiring building benchmarks and reporting); Austin, TX Code of Ordinances § 6-7-31 (2011) (commercial facilities required to calculate annual energy budget). The information is commonly used to inform a variety of local government decisions such as land use planning and permitting, budget decisions and infrastructure planning, event planning, intergovernmental cooperation and even the exercise of eminent domain. The information helps to identify future risks and costs, the potential for public interest in particular problems, and the solutions that might be relevant.
Local governments are not better at gathering this information due to sophistication or funding. Local governments are better at it because of their access to a deep pool of relevant information and their lens through which the information is discerned. The important point here is to recognize the critical role of location to the way local governance happens. Based on geological, ecological, economic, and cultural circumstances, communities adapt to the demands of living in a particular place because communities must survive in their own place. This type of experienced information is tattooed with the values that particular resources have to their beneficiaries and users and reflected in local resource decisions.
- Local as a Laboratory for Innovative Responses
Communities approach particular changes in their own ways – some dig in to wait out changes, some take more protectionist ideals and seek to maintain the status quo through zoning, where others employ more forward-thinking measures through long range planning. It should not be surprising that different communities often understand changing circumstances in ways that appear to contradict. But it is also not surprising that a particular community’s reaction to new challenges follows more or less the same basic premise: although local needs and circumstances will vary, human needs and quality of life are the common driver.
Accordingly, the third observation about the importance of local is variation in innovation. The development of technologies and approaches to construction, infrastructure, economic development priorities, education, and housing (and others) are designed to resolve the effects of disruption and secure a community’s vision against the backdrop of change. Importantly, variation in local responses to disruption generates significant information on what works and the local circumstances that facilitate stories of success.
Many local governments are experimenting with incentives to promote green building techniques and even requiring developments to implement the most sophisticated building materials. While the federal government pursues policies that support coal and concrete, local governments are pushing forward with promoting technologically advanced forms of building. Lancaster, California, requires that many new buildings meet net zero standards or be outfitted with a solar energy system that can produce two watts of power for every square foot of the home. Lancaster, Cal., Energy Code § 15.28.020 (c) (2017). Georgetown, Texas, offers multiple incentives, including net metering and rebates, for residents to add renewable energy sources to their properties. Georgetown, TX, Code of Ordinances § 13.04.083 (D) (2) (2012). Miami Beach, Florida, a city already struggling with climate changes, is assessing building fees to combat the impacts of rising sea levels through innovative projects such as environmental restoration projects, monitoring, green infrastructure, and stormwater quality improvements. Miami Beach, FL, Code of Ordinances § 133-6(a)(2016).
- Local as Normalization
Elevating location in an analysis of environmental governance does not suggest any particular value as a normative matter. There will be few response strategies that will be effective in every community, and a “good” strategy may be best guided by the notion that it is good if it would work here. In the meantime, preemption is a good check on local governance, and top-down approaches to land use regulation may offer meaningful constraints on the bad kind of intergovernmental and inter-community competition. Nevertheless, the pervasiveness of location suggests that we should not rush to preempt local initiative. In the meantime, although local should be recognized for uniqueness, the contingencies in the arena of local regulation can serve as a gauge for developing norms. Successful strategies can be borrowed and adapted to different communities, which in turn will generate additional confidence as response strategies across the spectrum of ecological, geological and hydrological difference normalize in the common goals that drive locational adaption.
Monday, November 5, 2018
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.
November 5, 2018 in Agriculture, Air Quality, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, North America, Sustainability, US, Water Quality | Permalink
Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.)
My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid. As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific. Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home. 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.
(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)
The Long Journey Home Begins. In departing Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland. It was a long trip, but the transitioning away from China began immediately. Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed. Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down. Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis. We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor. We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.
And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy.
On our second or day back, I went grocery shopping with my four-year old son. I was mentally prepared for how psychologically fraught this might be. I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time. I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption. I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused. Everything was so sterilized, and there was just so much of it all. No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything.
I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands). It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.
I shut my eyes, centered my breathing, and considered how much we wanted those strawberries. And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping. Like I had never left. In fact, I knew exactly what to do. I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter. Suddenly, it wasn’t so strange after all.
Which became its own haunting experience: was all this excess really my personal norm?? So help me, it was. This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore. But why didn’t they know how abnormal it really was? Don’t they know what the rest of the world eats and where they find it? That most people alive today (or at any time in history) could never imagine a place like this? Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all? Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?
Strangers in Our Own Land. Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing.
It was hard to get over how clean the world suddenly seemed. Like a movie set, because it couldn’t really possibly be that clean. The streets and houses are clean. The air is brilliant; sweeter than I had imagined. Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight. We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure. Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates. But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.
There is not so much litter here in the U.S., and not so much dust. We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China. (No exaggeration: our East China home dusted in the morning was saturated again by evening. But then again, we all know what dust is mostly made of—dead skin cells. There are more than a billion people crowded along China’s East Coast; you can do the math.) Nature in the U.S. is spectacular. The grass really is greener; the sky improbably blue. The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it. And yet we also have to remember not to look directly at the sun, as we so often could in China.
This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky. But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood! We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school). And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance.
My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling. But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed. At first, the teachers didn’t know what to do with his hesitation to act independently. “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!” After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition. And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.
Cultural Pride and Cultural Shame. Public safety and sanitation is different here. It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along. I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China. I no longer worry about giving my child medicine when he is sick. That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown. I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.
But there are also moments of immense cultural pride. I cannot boast enough about American tap water, with which we are all hopelessly in love. Drinking directly from the sink never gets old, and Oregon water is especially heavenly. My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried. We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water. Nothing! (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)
Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water. It feels excessively wasteful. It boggles my mind to see people using it to sprinkler lawns and wash cars. “No, no,” I think, “are you crazy? You could drink that!” But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash. Which is obviously insane, especially in the arid West. I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore.
At Home in America. Our neighborhood is lovely with trees and grass and wildlife, but strange with people. It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car. If you don’t walk a dog, it’s easy to never see neighbors face to face. In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers. Public spaces are alive with community in China, but here, we are much more isolated. We live close to our neighbors, but with little random interaction. With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience.
Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points. Public spaces are so empty by comparison. The country is so empty, with vast unpopulated tracts of land. “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind. One student has his own room for the first time in his life—and he hates it. There is nobody to talk to. Nobody to care if you are even there or not.
While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first. But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore. A little dirt won’t hurt, we tell ourselves; how bad could that floor really be? (There’s barely even any dust!) And for that matter, why bother with organic? Why sweat the preservatives? After our year abroad, we have been fully absolved of the illusion that our bodies are temples.
But our house—goodness gracious—is ridiculously, shamefully big. I was deeply embarrassed when my Chinese students came to visit us in December. I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays. But at the same time, I cringed at the thought of showing them where I live. I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives. True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.
That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it. It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone. I returned from China with bursitis in my hips because Chinese beds are so hard. But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests. There is wall-to-wall carpeting, with padding beneath. On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable. Embarrassingly, my body wilted into the cushions like a crying child to her mother. My fallen arches stopped screaming about the constant concrete floor underfoot.
Of course, this too is purely a matter of culture. One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft. Everything in the US is so unbearably soft, he complained—even the floors are soft! “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.
Freedoms for Granted. The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet. Tiananmen. Terrorism. When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration. What our parents tried to teach us about our roles in the world.
My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself. In the wake of Tiananmen, these were survival instructions. They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background. Then they asked me what my parents taught me while I was growing up. I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary. We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.
In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague. I could write freely. I didn’t have to be purposely ambiguous about connecting names with events or statements. I could make full sentences rather than mnemonics. For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing. I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.
I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home. After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely. My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email. But now, nothing I said could hurt anyone anymore. I could relax! But no, I couldn’t relax. It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.
Between Worlds. So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left. Supermarkets aside, it was remarkably easy to rejoin American culture. Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules). I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time. I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away. I knew how to operate American culture like an expert. It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside.
Yet reverse culture shock sneaks up on you. A few weeks after we got back, I fell into what I can only describe as a brief but intense depression. I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to. I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer. Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home!
But these were guilty pleasures, most, because of course life is nicer in the first world. Back now to that dizzy place. How to feel about all this? What about those we left behind? So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind.
Then again, I know I’m not really leaving it all behind. Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now.
Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed. As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college. As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year. He was so proud to be Chinese again, if only for the day. The next day, he was happy to be an American again, romping freely around the neighborhood playground. So yes, he is a clearly a child of two worlds now.
And in some smaller way, I guess I am too.
Monday, April 23, 2012
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.
April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Friday, March 9, 2012
"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."
- "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).
March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, March 5, 2012
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)
On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.
On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.
Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.
For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-‐50 billion range. (Take $6 billion in compensation fund pay-‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?
To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil.
Monday, February 20, 2012
Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?
The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.
1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.
2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.
3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.
Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.
Friday, January 27, 2012
- Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)
Friday, January 13, 2012
The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City. If you have not been before, this is one of, if not the, premier environmental law conferences in the nation. (If the weather turns right, there could also be really great skiing.) The conference used to be known as the "Keystone Conference."
As usual, there is a fantastic line-up. Just a few samples include:
- Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions
- Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption
- Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal
- Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion
Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).
To register, go to the conference website.
Thursday, December 1, 2011
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)
Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co., (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).
No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)
Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.
First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.
PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.
Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.
As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?
From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.
Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.
Saturday, November 12, 2011
She is too humble to mention this herself, so I will take this opportunity to note that Lesley McAllister was selected as the Stegner Center Young Scholar this year. As the Young Scholar, Professor McAllister will be visiting the University of Utah's S.J. Quinney College of Law this coming Monday and Tuesday, November 14 and 15. Here is the blurb:
Lesley McAllister will join the Stegner Center as our seventh annual young scholar. The Young Scholars Program, which is made possible by the generous support of the Cultural Vision Fund, is designed to recognize and establish a relationship with promising scholars early in their academic careers. Recipients are selected based on their accomplishments, the quality of their academic work, and their promise in the field of environmental and natural resources law and policy.
While at the University of Utah, Professor McAllister will give two talks. The first starts at noon Mountain time on November 14; it is "Regulation by Third-Party Verification." The second begins at 12:15 Mountain on November 15; it is "Co-Regulation in Mexican Environmental Law."
Both events are open to the public. If you're in Salt Lake, please join us. If you'd still like to participate but can't make it to Salt Lake, you can watch online.
Wednesday, November 2, 2011
The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues. The position is for the director of the program.
Here is the announcement. Note the link at the end for online applications:
The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.
November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)