Tuesday, August 7, 2018
It is the fiftieth anniversary of the publication of Edward Abbey’s Desert Solitaire, which popularized the stark beauty of southeast Utah’s vast and seemingly untouched landscapes. Abbey’s later writings, including the novels The Monkey Wrench Gang and Hayduke Lives, cemented his reputation as a radical scallywag. These books embraced vandalism in defense of the environment, and inspired the founders of EarthFirst!, whose tactics and philosophy posed a deliberate challenge to the accommodationist approaches of mainstream environmental groups.
Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort, we need his irascible, cranky, and irrepressible voice today more than ever.
But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienating version of what it means to be “truly wild,” or “truly radical,” or “truly environmentalist.” The problem with re-lionizing Abbey in 2018 is not just that he was sexist, racist, and xenophobic. But also that those views were sewn into his brand of so-called radicalism. They constituted the lenses through which he saw the landscape he aimed to protect.
What Abbey saw were beautiful empty places where white men (quite specifically) could be free and wild. Their version of wilderness preservation, even supplemented by the occasional nod to the evils of growth-dependent and extraction-based economies, was oblivious to the structures that enabled their seemingly unmediated encounters with the desert. Those structures included brutal and unscrupulous campaigns to dispossess Native people of most of southeast Utah. They included the failure of post-Civil War efforts to democratize homesteading by including eligible African Americans eager to flee the South. And they included, time and again, the cultural acceptability of exploiting women, both by treating them as fungible sex toys and by relying on them to mind the homestead and raise the young’uns. Abbey’s version of radical environmentalism assumes away all of the inequalities baked into his ability to be a free man in canyon country. Abbey also managed to alienate lots of white men while he was at it. He scorned ordinary work as part of his critique of corporate and industrial interests and romanticized manual labor even while he railed against ranchers and farmers in his midst.
Here let me pause a moment to acknowledge two things about Abbey that explain his enduring appeal to many environmentalists. First, his nature writing is beautiful. It has that dual-quality of inspiring you to visit if you have never been, and evoking waves of longing to return if you have.
Second, like Henry David Thoreau, Abbey taps into an elemental longing for “wildness.” In 1865, Thoreau wrote “that in Wildness is the preservation of the world,” and by that he meant not just places that were unmanaged and untamed, but the habits of mind inspired by such places. Thoreau wrote of his preference for bogs and swamps over cultivated gardens, but also of the wildness in Hamlet and The Iliad versus the tame prose of Chaucer, Spencer, and Milton. “The poet today, notwithstanding all the discoveries of science . . . enjoys no advantage over Homer.” Similarly, in Freedom and Wilderness, Wilderness and Freedom, Abbey penned the following moving passage about north Jersey: “When I lived in Hoboken . . . we had all the wilderness we needed. There was the waterfront with its decaying piers and the abandoned warehouses, the jungle of bars along River Street and Hudson Street, the mildew-green cathedral of the Erie-Lackawanna Railway Terminal.” For Abbey and Thoreau, wildness involved a state of mind, not just the places that could inspire it. This aesthetic has a long pedigree. In the western tradition, Kant and Burke explored the sublime and the abject, two opposed cognates of the wild. Freud plumbed the uncanny, and art historians have documented the swings between meticulous perfection and emotive explosiveness in painting, sculpture, and other art forms. Abbey brought this aesthetic to the desert southwest. For doing so, he earned devoted followers in his own time and generations of acolytes afterward. Had he just done that, we could celebrate his literary contributions and stop there.
But Abbey did more. He embraced a xenophobic and overtly racist version of anti-growth environmentalism. In 1963, during the heart of the civil rights movement, Abbey wrote:
According to the morning newspaper, the population of America will reach 267 million by 2000 AD. An increase of forty million, or about one-sixth, in only seventeen years! And the racial composition of the population will also change considerably: the white birth rate is about sixty per thousand females, the Negro rate eighty-three per thousand, and the Hispanic rate ninety-six per thousand. Am I a racist? I guess I am. I certainly do not wish to live in a society dominated by blacks, or Mexicans, or Orientals. Look at Africa, at Mexico, at Asia. Garrett Hardin compares our situation to an overcrowded lifeboat in a sea of drowning bodies. If we take more aboard, the boat will be swamped and we’ll all go under. Militarize our borders. The lifeboat is listing.
There is a long pedigree to this kind of thinking too. The first wave of American conservationists included prominent white supremacists, such as Madison Grant and Henry Fairfield Osborn. They associated nature preservation with racial superiority and employed the disgraced science of eugenics to justify their approach. Sadly, these views are not limited to marginal figures in the conservation canon. John Muir, founder of the Sierra Club and literary antecedent to Abbey, espoused ugly anti-Indian views and was also largely apolitical with regard to the important civil rights and egalitarian movements of his day. Even Aldo Leopold, who penned the justly celebrated “Land Ethic,” held some members of the human community in higher esteem than others. In Vanishing America: Species Extinction, Racial Peril, and the Origins of Conservation, Miles Powell unearths Leopold’s unsavory statements about immigration and population growth. In an exchange with natural historian William Vogt, Leopold railed against Asians and other non-Western European immigrants who threatened to overrun the country with their high rates of reproduction. There is a through-line from these Malthusian thoughts to Paul Ehrlich’s Population Bomb, which became the basis for late-twentieth century versions of the immigration panic within some environmental circles. The Sierra Club successfully fended off an anti-immigrant board take-over in 2004, but the fight was a reminder that white nativist ideologies still lurk within some strains of environmentalism.
Yet many other environmentalisms also exist. The environmental justice movement, which gained prominence through battles over racially discriminatory siting and permitting, today includes broad redistributive concerns. Social ecologists have long argued that there will be no environmental protection as long as capitalism, with all of its attendant exploitative hierarchies, forms the basis for our economic system. In many indigenous worldviews, leading an ethical and moral life is defined in the context of taking care of the Earth and all its creatures, including human ones. And most mainstream versions of environmentalism today include at least rhetorical nods to justice, equality, and sustainability. The science of climate change and other global environmental threats make it naïve, at best, not to consider the connections between consumption, inequality, and environmental protection.
Given the long, hard road ahead to make good on efforts to dismantle local and global inequality, combat climate change, and sustain/create just and equitable communities, it is past time to celebrate Ed Abbey, the person. Not only was he sexist and racist; he was politically shallow. He espoused a naïve anarchism, taking potshots at the state, without appreciating that without it he would have had no Arches, no Canyonlands, no seemingly “empty” places. He criticized corporate capitalism for its consumerism, but not its production of racialized inequality. Lionizing Abbey today does nothing to bring the redistributive and justice-oriented strands of environmentalism together. Worse, Abbey-worship is likely off-putting to young activists of color and their allies, who see protecting places like Bears Ears National Monument as inextricably linked to addressing the extreme trauma that affects Native people outside of monument boundaries. Abbey thoughtlessly mused that “compulsory birth control” might be a necessary part of the solution to Navajo poverty. Today’s intersectional environmentalists understand that freedom and justice for Navajo women is inseparable from preserving their sacred lands. They are just as likely to work for non-profits serving poor indigenous clients as they are to throw their hearts and souls into protecting public lands. Some do both, practically simultaneously. And so it should be.
Go ahead; read (most of) Desert Solitaire and revel in the poetry of a desert sunrise. But if you are looking for heroes, look here instead. Or here. Or wake up for that sunrise yourself, embrace intersectional and egalitarian environmentalism, and look in the mirror.
- Sarah Krakoff
Tuesday, July 24, 2018
The Bureau of Land Management just announced that it would no longer require compensatory mitigation for impacts to public lands. This fits with a larger theme. Since the early days of the Trump Administration, officials, including Interior Secretary Ryan Zinke, have made no secret of their disdain for compensatory mitigation practices. And they have worked to undermine initiatives, like efforts to protect the sage grouse (and avoid its listing under the Endangered Species Act), that have relied heavily upon compensatory mitigation.
Their positions have generated a few puzzled reactions. In some circles, compensatory mitigation is viewed as a market-friendly type of regulation, largely because it gives otherwise-prohibited projects flexibility to proceed so long as their proponents strike deals to provide protection at a other places or times (though that isn't the way today's announcement works; instead, the administration is just saying it will allow projects to proceed without asking for any compensation for unavoidable damage to public resources). Academic analyses often describe compensatory mitigation as "neoliberal" policy, which carries the implication that at least some conservatives ought to like it.
In a recently-published essay, I try to make some sense of the administration's attitudes, and to give them some historical context. The conclusion, in a nutshell, is that they aren't as surprising as they might initially seem. Compensatory mitigation policy has emerged primarily from government agencies, rather than directly from businesses, and it appeals to regulators and to businesses that want to find creative compromises between businesses' needs and the goals of environmental law. To an administration that disdains agencies and wants to tear up environmental law (and also doesn't care much for economics), there isn't as much to like.
So, unfortunately, we can probably expect to see more policies like the one emerging today. That's too bad. Compensatory mitigation policy is hardly perfect, but it's a lot better than letting extractive industries damage public resources without providing any compensation in return.
- Dave Owen
sage grouse image from fws.gov.
Thursday, July 19, 2018
Today, the Fish and Wildlife Service released three proposed rules designed to change ESA implementation (the National Marine Fisheries Service is a coauthor of one of the three rules). This post, based on a first read of the proposed rules, identifies seven particularly important elements or themes.
1. The 4(d) rule change is the most important element of the rules. The three rules contain many proposed changes, but I think one is by far the most important. That’s the Fish and Wildlife Service’s proposal to abandon its tradition of extending ESA section 9’s take prohibition to newly-listed threatened species, and to make the absence of such protection the new default. In other words, at present, when FWS lists a new species, it extends section 9 take protections to that species unless it affirmatively decides to follow a different course. Going forward, if this rule is finalized in its present form, FWS would not provide those protections unless it decides to follow a different course.
Why does this matter? The answer, which gets a little bit into the ESA weeds, is that much of the protection FWS provides comes through section 9. That isn’t because FWS often directly enforces section 9 against landowners; for all the talk about section 9’s fearsome reputation, enforcement resources are actually incredibly thin (and citizen suits are rare). Instead, the fear of section 9 liability sometimes induces federal agencies, along with state or private entities that need federal permits, to engage in consultation processes. And those consultation processes typically result in binding “reasonable and prudent measures” that are primarily designed to limit take, but that often provide more general benefits to species.
To put all of that in plain English, eliminating the 4(d) rule will mean that at least some threatened species have less protection.
2. The most important change is also one of the least explained. FWS’s stated reasons for eliminating its default 4(d) rule are (a) it wants to be consistent with the practices of the National Marine Fisheries Service, which doesn’t have an analogous rule; and (b) it thinks species-specific 4(d) rules work better than a blanket rule. The former explanation doesn’t explain much; consistency is nice in many circumstances, but there’s no conflict here between the agencies’ different approaches (they’re working with different species); nor does FWS provide evidence that its traditional approach wasn’t working. And the latter reason doesn’t explain anything. Species-specific 4(d) rules do have their advantages, but the current default rule doesn’t do anything to eliminate FWS’s ability to adopt species-specific 4(d) rules. It just sets a different default outcome when FWS chooses not to prepare a species-specific 4(d) rule.
I strongly suspect the real reason for the 4(d) change is a simple desire to weaken ESA protections and thus, hopefully, reduce regulatory burdens (though it won’t work out that way if the reduced protections just lead threatened species to become endangered more quickly). The stated justifications look an awful lot like smokescreens.
3. Other than the 4(d) rule, there’s a striking amount of continuity. In the other realm where I follow rulemakings particularly closely (Clean Water Act jurisdiction), the Trump Administration is in a headlong, sloppy rush to undo whatever the Obama Administration did. Here, in contrast, many of the proposed changes are subtle, and they reflect agendas pursued by prior administrations. A move toward programmatic consultations, for example, is entirely consistent with an Obama-era push toward landscape-scale planning and permitting. And in many places, the preamble refers to a 2015-16 rulemaking process to emphasize this theme of continuity. Similarly, the consultation rule’s emphasis on achieving efficiency through pre-set understandings between action agencies and FWS and NMFS is consistent with on-the-ground practices that have been evolving for years. In other words (and, again, other than the 4(d) rule), this actually looks a lot like a technocratic rulemaking, with the longstanding priorities of the agency tinged but not dominated by the politics of the present administration.
4. The rules appear to back off, a little, from designating unoccupied habitat as critical habitat. Several adjustments in the rule appear designed to move FWS toward smaller designations of critical habitat, particularly where that habitat is presently unoccupied. For example, the new rule would reinstate an express preference for limiting designations to occupied habitat unless that occupied habitat is insufficient to sustain the species. And in an apparent nod to the Markle Interests case currently before the Supreme Court, FWS states that it will be reluctant to designate unoccupied habitat if landowners would need to take significant steps to make that habitat hospitable to species (there’s also a passage—specifically aimed at jaguar habitat designations, I would guess—about not designating habitat in this country when the habitat a species most needs is abroad). But none of these changes are phrased in absolute terms, which means FWS will still have discretion to continue designating large amounts of unoccupied habitat (something that did happen with increasing frequency during the Obama years).
5. The “adverse modification” definition keeps getting mushier. The ESA prohibits federal agency actions that are likely to cause “adverse modification” of critical habitat. For years, FWS and NMFS have struggled to explain and apply that prohibition. They have never accepted the idea that any adverse change to critical habitat qualifies as adverse modification, and instead have wanted to read into the statute an exception for small-scale modifications. But finding language to describe that exception (and to do so in ways that aren’t too obviously inconsistent with a textualist reading of the statute itself) and figuring out how to implement it have been ongoing struggles (more on that in this article and this blog post). The services’ general approach has been to use ambiguous language—terms like “appreciably modify” or “considerably reduce”—to explain how much modification is too much, and then, in practice, to say that small adverse modifications of habitat don’t qualify as “adverse modification” within the meaning of the statute—even when they also acknowledge that species are being pushed toward extinction by the cumulative effects of many small changes to their habitat.
The current rulemakings’ contribution to this situation is three more wiggle words. According to the new rule, a modification is only adverse if it “appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.” That language seems designed to give the services more permission to step back and view negative habitat effects at a scale at which they don’t really seem noticeable.
To be fair, the services have a difficult challenge here. Figuring out how to draw the lines between de minimis harms and harms that are incremental but cumulatively significant is hard. And while my research found that the services were soft-pedaling the adverse modification prohibition, I also found that they were still trying to provide ample habitat protection through other means. But I still think it’s problematic to use rulemakings to take fairly straightforward Congressional language and turn it into mush.
6. It would be nice to have more clarity on “expedited consultations.” The regulations propose a process called expedited consultation, which would involve faster consultations for projects with fairly well-known impacts. That sounds like a good idea, particularly for projects like culvert replacements that have fairly well-known short-term impacts and long-term benefits. But the proposed consultation rule is fairly vague about how these expedited consultations would work. Which parts of the normal consultation process would be skipped? And how would the expedited consultation process differ from the already-common practice of adopting standardized conservation measures and reasonable and prudent measures for recurring project types? I’d like to know, but the proposed rule doesn’t really say.
7. There are many requests for comment on subjects where the agencies don’t actually offer a proposal. In rulemakings, agencies often invite comment on matters not directly addressed in the proposed rule. There’s nothing wrong with doing that, so long as the agency’s final rule is a “logical outgrowth” of the proposal. But given this administration’s track record of trying to circumvent normal rulemaking procedures, these requests for comment make me wonder if the political higher-ups at DOI are holding more major changes in reserve, and are planning to unveil them in the final rule, saying something like, “of course it’s a logical outgrowth! We specifically invited comment on that issue!” Courts most likely would make short shift of those arguments. But given the current administration’s impatience with administrative law, some concern still seems worthwhile.
There are many more elements to the proposed rules, and many more things that could be said. But my overarching conclusion is that the proposed 4(d) rule is the big story here, and otherwise these changes aren’t drastic. Some are somewhat promising; some are somewhat problematic; and some could go either way depending upon how they are fleshed out.
- Dave Owen
An additional note, added after the initial post: one other potentially important change involves the regulations' definition of "the effects of the action." In the new regulations, effects would only count if they are "reasonably certain to occur." That's not an entirely new concept; the regulations previously used that same language with respect to "indirect effects." But the new rule would extend it to all effects.
That matters because the language, taken literally, would exclude effects that are possible but uncertain. For example, suppose that a proposed project creates what scientists estimate to be a forty percent chance of releasing a problematic invasive species into an endangered species' habitat. A reasonable person would take that risk into account when deciding whether to allow the project (and, more importantly, what steps to take to reduce the risk of the invasion; in practice, consultation is all about making adjustments). But the new language might appear to give agency staff license to ignore the effect, saying that it is not "reasonably certain to occur."
In the preamble, the services suggest that they just intend to exclude "speculative" effects, and that absolute certainty isn't necessary. But given the uncertainties of environmental science and human behavior, many effects fall somewhere between certainty and speculation. The services ought to find language that better accounts for that intermediate zone.
Tuesday, February 13, 2018
Last week, the Ninth Circuit decided Hawai’i Wildlife Fund v. County of Maui, a case involving Maui County’s practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The County, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county’s wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants’ pathway is indirect.
The decision is well-reasoned and carefully explained. The Ninth Circuit grounded its holding in both the text and purposes of the Clean Water Act and in a series of prior decisions (including Justice Scalia’s Rapanos plurality opinion), and the outcome, which prevents the county from “doing indirectly that which it cannot do directly,” in the Ninth Circuit’s words, seems fair. The Ninth Circuit also took pains to explain that it was not holding that all indirect pollutant pathways between point sources and navigable waters would require NPDES permitting.
But the opinion still raises some thorny questions about the scope of NPDES permitting obligations. The basic situation in this case—pollutants traveling from a point source through groundwater and into surface water—is hardly rare. Nor is there a sharp break point between the fact pattern of this case, which involved a single large source and wells fairly close to the surface waterway, and fact patterns that would involve much larger numbers of sources and/or longer or more indirect flow pathways. Most shallow groundwater is connected to surface waterways, and much of the pollution that gets into groundwater winds up in surface waterways, and the amount of interconnection is often a matter of degree. That then raises the question: just how far upgradient does the Ninth Circuit’s reasoning go?
Of many possible scenarios where that question might arise, one strikes me as particularly intriguing. Do all, some, or none the millions of septic tanks in the United States require NPDES permitting?
The argument in favor of those requirements is straightforward. NPDES permits are necessary if a point source releases pollutants into navigable waters. Septic tanks appear to qualify as point sources, for, as the image above shows, their effluent emerges through pipes or other forms of “discrete conveyances.” They release pollutants, sometimes in fairly large quantities. And while those releases usually are into groundwater, many of the pollutants that leave septic tanks wind up in surface waterways—sometimes through fairly short pathways. Lakes in New England or the upper Midwest, for example, are often surrounded by houses served by septic tanks. The whole system is rather similar to Maui County’s wastewater wells, except that the scale is smaller, the sources are more dispersed, and as the tanks age and begin to fail, the sewage is increasingly untreated.
So are septic tanks point sources? A quick Westlaw search reveals a common practice, in secondary source materials, of referring to septic tanks as non-point sources. But that may say more about the sloppiness with which authors use the term “non-point source” than about the appropriate legal classification for septic systems. After all, it is also common, in secondary source literature, to refer to urban stormwater runoff as non-point source runoff, and those references are mostly wrong and legally inconsequential. To my knowledge, neither EPA nor the states are in the habit of requiring NPDES permits for septic tanks, but, again, there are often disparities between what laws require and what regulators actually have the time or inclination to do. A few cases, including, most notably, the Fifth Circuit’s decision in United States v. Lucas, 516 U.S. 316 (2008), have upheld classifications of septic tanks as point sources, but the decisions involved tanks located over wetlands or that were piped directly to surface waterways. That leaves millions of septic tanks in a gray area.
A closely related question is whether classifying septic tanks as point sources would be a good idea. The arguments against such a classification are obvious: it would bring thousands of additional permittees, most of them individual homeowners, into a permitting system, which sounds unwieldy at best and intrusive at worst. On the other hand, general permitting might reduce some of the permitting burdens, particularly if the state regulators who implement most NPDES permitting programs just fold their permits into other preexisting septic system regulations. The NPDES permits then might function only as a backstop, requiring additional steps only to the extent that an effective program of septic tank regulation doesn’t already exist. And that backstop might be valuable. If I owned lakefront property, I might be rather reluctant to pay to upgrade my septic system if I’m the only one doing an upgrade. But if my neighbors’ permits require upgrades as well, I might think that the expense is amply justified by the benefits—including raised property values—associated with a cleaner lake.
Last week’s decision did not address these fact patterns, and the court took pains to limit its holding to the factual circumstances before it. But I suspect it is a preview of additional litigation to come, and that some of that litigation may involve the humble but exceedingly abundant septic tank.
- Dave Owen
Image credit: By Tilley, E., Ulrich, L., Lüthi, C., Reymond, Ph., Zurbrügg, C. - http://ecompendium.sswm.info/sanitation-technologies/septic-tank?group_code=s, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=37228106
Monday, January 22, 2018
Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the “Clean Water Rule” or “Waters of the United States Rule” should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.
This post provides brief answers to a few likely questions about the decision.
Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding, and blamed it primarily on precedent. The government’s arguments were grounded primarily in judicial and administrative convenience rather than statutory text, which, in this textualist era, is a pretty good recipe for a 9-0 loss.
What are the immediate effects? Before reaching its jurisdictional holding, the Sixth Circuit had issued a nationwide stay on implementation of the rule. That stay now must dissolve; a court cannot sustain an injunction in a case in which it lacks jurisdiction. That means the Clean Water Rule will now go into effect in those areas where it has not been stayed by a federal district court. Litigation also will now proceed in multiple federal district courts.
If you have read some of the attacks on the Clean Water Rule, you might think this will lead to huge changes in on-the-ground practices, and that federal agencies will now be asserting jurisdiction over just about anything wet. That outcome is exceedingly unlikely. As I’ve explained in more detail elsewhere, the Clean Water Rule makes subtle adjustments in the scope of federal jurisdiction and provides somewhat higher levels of clarity. I think it is a helpful rule, but it is far from transformative.
How will this affect current rulemaking efforts? The Trump Administration has been outspoken in its opposition to the Clean Water Rule, and it is currently pursuing multiple rulemakings designed to either repeal the rule or to delay its effective date. The Administration has also signaled its intent to eventually replace the pre-Clean Water Rule jurisdictional standards with something new, but it has not yet issued a notice of proposed rulemaking for that effort. So how, you might wonder, will this decision affect those efforts? I think there are two likely consequences, both of fairly minor importance.
First, this decision will increase the Trump Administration’s sense of urgency. A rule that the administration strongly opposes will now go into effect; obviously that ups the ante. But it may not make much difference. The administration has always been in a hurry to get rid of the Clean Water Rule, and the additional motivation may not accelerate its schedule.
Second, this decision undercuts some of the reasoning in the Army Corps/EPA’s proposals to repeal or delay the Clean Water Rule. In some parts of its proposal, the Trump Administration argued that it did not need to analyze consequences of repealing the Clean Water Rule because the rule was already stayed (in other parts of the proposal, and in public rhetoric, the administration has patted itself on the back for proposing a major change). That reasoning was always suspect; getting rid of a rule that is subject only to a temporary stay obviously is a legally consequential action. But now that the stay will soon be gone, that reasoning looks even more capricious. Nevertheless, I’m skeptical that this shift will make a big difference in case outcomes. It won’t matter for direct challenges to the Clean Water Rule (because those challenges will be to the rule itself, not to the Trump Administration’s follow-up actions), and while it might matter to challenges to the coming repeal, there are plenty of other arguments on which those cases can also turn.
What will the future bring? I have no crystal ball, but here’s my best guess.
- The litigation against the Clean Water Rule will now proceed in multiple federal district and, then, appellate courts, producing conflicting outcomes. If the cases are not mooted, and I predict that they won’t be, all of this will wind up before the United States Supreme Court.
- The Trump Administration will finalize its attempts (maybe one, maybe both) to repeal the Clean Water Rule, and then will argue that these attempts moot the litigation over the 2015 rule. Environmental groups and some states will challenge the repeals, however. Some of those challenges will be successful, which will in turn lead to conflicting results on the mootness arguments.
- While all this litigation is pending, and toward the end of this term, the Trump Administration will issue a new rule creating a new jurisdictional standard. That will lead to an additional round of rule challenges, as well as to a new round of mootness claims.
In other words, we’re headed for a mess that will take a long time to resolve. And it’s a shame. The Clean Water Rule was the best effort anyone has ever made to reconcile the goals of protecting water resources and providing clarity and predictability. It wasn’t perfect, but nothing in this realm could be. It deserved a strong defense from EPA, the Army Corps, and DOJ, not the set of flailing attacks it is now receiving.
- Dave Owen
Tuesday, December 5, 2017
The map of central and southern Utah changed dramatically on December 4. That day, roughly half of the Grand Staircase-Escalante National Monument and over 90% of the Bears Ears National Monument were eliminated, returning those lands to the status they held prior to the designations (federal, but with fewer protections). Within hours of Trump signing Proclamations creating new, smaller monuments to replace Grand Staircase and Bears Ears (proclaimed by Presidents Clinton and Obama, respectively), multiple complaints have been filed in federal district court in Washington, D.C.
Earthjustice took the lead in the first Grand Staircase-Escalante National Monument lawsuit, representing 7 other national and regional environmental groups, and raising four claims against the President, the Department of Interior, and the BLM. The five claims involve constitutional arguments (separation of powers and Take Care Clause violations), APA and Antiquities Act violations, all of which focus on Trump’s lack of authority to revoke the proclamations of his predecessors. The constitutional arguments mirror those in other recent litigation challenging Trump’s executive actions – that he has exceeded the Constitutional limitations placed on his office and intruded on the functions of Congress. Regarding the Antiquities Act, the environmental groups argue that the narrow delegation to the President to create national monuments does not carry with it the implied authority to revoke them. The APA claim is against Interior and the BLM only, asserting that any implementation of Trump’s Monday order constitutes “arbitrary and capricious agency action not in accordance with law” because the order is unconstitutional.
A second Grand Staircase lawsuit was filed by a local nonprofit, Grand Staircase-Escalante Partners, along with the Society for Vertebrate Paleontology and the Conservation Lands Foundation, raising five claims against the President and Secretary of Interior Ryan Zinke. These largely mirror the claims in the Earthjustice complaint, although the constitutional claims do not include the Take Care Clause and focus on the separation of powers issues. A new argument in this complaint is that given the length of time since Grand Staircase was created, Congress has demonstrated that it has exclusive authority over the Monument (potentially heading off any argument related to Congressional acquiescence that Trump or Zinke might make in the future). The final claim in this complaint is that the Federal Lands Policy and Management Act, combined with the Antiquities Act, creates a statutory “superstructure” governing this Monument, which neither Trump or Zinke are authorized to circumvent in any way.
The Native American Rights Fund filed a complaint on behalf of the five tribal proponents of the Bears Ears National Monument (Navajo Nation, Hopi Tribe, Zuni Tribe, Ute Mountain Ute and Ute Indian Tribes), asserting four claims against Trump, the Secretaries of Interior and Agriculture, and the directors of the Forest Service and BLM. This complaint also alleges constitutional violations, and claims under the Antiquities Act and the APA. This Antiquities Act claim is slightly different than the one in the Earthjustice complaint, and argues that not only Trump’s orders, but any agency implementation of those orders is ultra vires action violating the Antiquities Act. The tribes also argue that Trump’s orders are unconstitutional based on separation of powers concerns and the Property Clause (which vests all decisions about federal land ownership with Congress, unless expressly delegated to the President or to an agency). Finally, the tribes' APA claim is based on section 706(1) (authorizing courts to “compel agency action unlawfully withheld”) because BLM and Forest Service have failed to develop a Monument Management Plan under the lawful proclamation issued by President Obama, which created the Bears Ears National Monument on December 28, 2017.
On December 6, Utah Dine Bikeyah, a nonprofit organization focused on preserving places of cultural value to the Navajo Nation, filed a complaint on Bears Ears, joined by 7 other plaintiffs, including Patagonia and the Access Fund. This complaint largely mirrored the tribes' complaint, especially as to the causes of action. The first two claims allege that the Revocation Proclamation was an ultra vires action outside the scope of the Antiquities Act. They add more factual detail about the impacts to excluded areas by off-road vehicle use, in particular. Counts three and four allege separation of powers and Take Care Clause violations, mirroring the claims in the Earthjustice complaint on Grand Staircase-Escalante.
The next day, NRDC filed a complaint on Bears Ears as well, joined by 9 other national and regional environmental groups. This complaint largely mirrors that of Earthjustice on the Grand Staircase-Escalante Proclamation.
Some of these issues are ones of first impression, and others are not. It is clear that the Property Clause places decisions about public lands squarely within Congress’s domain, but that those powers can be delegated to the Executive. The issue of whether the Antiquities Act contains an implied power to reverse Monument proclamations is one of first impression, although at least one Attorney General opinion and several public lands scholars’ recent analysis have concluded no such authority exists (see opposing arguments here). Parties to the litigation have created maps representing their best estimation of the new Monument boundaries.
- Hillary Hoffmann
Arizona State University recently announced its Call for Presentation and Panel Proposals for its Fourth Annual Sustainability Conference of American Legal Educators. The conference will be held on May 11, 2018, at ASU’s new law school building in downtown Phoenix, AZ. Roughly 50 faculty speakers from throughout North America are selected annually to speak at the conference, and their airfare/transportation costs (up to $500) and lodging are covered by ASU.
Here’s a link with more information about the conference and how to submit proposals: https://law.asu.edu/degree-programs/sustainability/annual-conference . Buzz Thompson (Stanford) will be this year’s keynote speaker.
In connection with the conference, ASU is also conducting the Third Annual Morrison Prize Contest. The Morrison Prize comes goes to the top sustainability-related article, as chosen by a panel of professors, that was published in the preceding year (it is not a prize for works in progress). Entrants must merely send five offprints of their article and a cover letter to the address in the Call for Entries.
December 5, 2017 | Permalink
Wednesday, September 27, 2017
Lately, judicial deference to agency decision-making is a hot topic (by administrative law standards, at least). Judges and law professors are always talking about deference, but the recent attack on Chevron deference, spearheaded by now-Justice Gorsuch, has upped the ante.
In those debates, we often hear two justifications for deference. One—the delegation justification—is grounded in Congressional intent. The basic idea is that when Congress allocates a task to an administrative agency, it wants the agency, not the courts, to take the lead. While judicial oversight remains appropriate, the courts should not upend Congress’s choice of delegate. The other justification—the expertise justification—is grounded in relative institutional competence. The idea is that agencies have more expertise than judges on the subject matter at hand.
Both of these justifications are compelling, but I think a third justification ought to inform the deference jurisprudence. That justification is simple. An additional reason for judicial deference to agency decision-making is our respect for work.
To illustrate that point, consider an example that does not involve judges or agencies. Suppose a colleague and I are co-teaching a course in a subject area that we know equally well. Suppose that, for reasons of scheduling, my colleague does more work than I do in preparing a class. And suppose that we then have a disagreement about how the class should be taught. The appropriate response, most of us would agree, would be for me to defer to my colleague’s judgment. I wouldn’t be deferring because my colleague received delegated authority to make the decision, or because my colleague has more generalized expertise in the subject matter than I do. I would be deferring to my colleague because my colleague has done the work. And that, in turn, would seem appropriate for several reasons. One blurs into the expertise rationale a little bit; a likely byproduct of my colleague’s work is greater knowledge of the subject matter directly at hand. But the other reason is grounded in cultural values and the positive incentives they create. We understand, as a culture, that work is hard and that work is important, and therefore we respect, and we defer to, people who actually do it.
Or, at least, we should. But when we talk about the work of administrative agencies, that basic respect for work often seems absent. For me, this has been particularly striking in the judicial and political responses to the 2015 Clean Water Rule, which attempted to clarify the scope of federal jurisdiction under the Clean Water Act. EPA and the Army Corps of Engineers put a ton of work into that rule, and they based it on a peer-reviewed scientific synthesis document, which in turn was based on a review of over 1,000 peer-reviewed studies. Even preparing just one peer-reviewed study is a lot of work; collectively, those studies represented years of effort by hundreds of stream scientists. The rule, in other words, stood atop a massive foundation of careful thinking and hard work, and that ought to command respect.
Yet first judges and now the Trump Administration are doing their best to throw all that work aside. A federal district court judge in North Dakota went first, enjoining the rule in a dismissive and inaccurate opinion that demonstrated neither any respect for the work the agencies had put into their rule nor even awareness that reading an administrative record is part of the work of judging. Next came an injunction from the Sixth Circuit, which was more respectful in its tone and careful in its prose, but which still offered just a brief analysis explaining why it was putting years of effort on hold. Now, most recently, the Trump Administration’s appointees at EPA and the Army Corps have proposed to repeal the 2015 rule, in a cursory rulemaking proposal that, as some colleagues and I explain in these comments, simply ignores the scientific record informing the 2015 rulemaking (and some basic requirements of administrative law). The new rule, in other words, neither reflects nor respects work.
It isn’t hard to see where at least some of this is coming from. To politicians of President Trump’s ilk, the idea of a hardworking agency staff member is the sort of joke that gets a good laugh on the golf green. It isn’t reality. And there’s no need to respect agency work agencies actually do no work (or work only when scheming to maximize their own power). But as anyone who actually interacts with agency staff knows, there are thousands of hardworking government agency staff in this country, and our nation could not subsist without the work they provide. Judges, and the rest of us, ought to respect that—except, of course, when the work really is absent. And that’s why the Trump Administration’s new rulemaking deserves no deference at all.
- Dave Owen
Friday, September 1, 2017
Earlier this week, Lesley McAllister, who taught environmental law at the University of San Diego and then at UC Davis, passed away after a long battle with cancer. Among the many accomplishments of Lesley's too-short career was playing a major role in the resurrection of this blog.
Here are links to two stories about Lesley: the written version of a speech given by her former colleague Orly Lobel, and an article in the Princeton alumni magazine. As the stories show, Lesley had tremendous determination, compassion, and intelligence. We will miss her.
Tuesday, August 29, 2017
Editor's note - Since I originally posted this, LSU, Wake Forest, and Denver have advertised openings. I've added each of those to the list.
Several law schools are looking to hire environmental law professors this year. So I've put together a list of openings. The text below is pasted from position announcements if I have them, though I have not always pasted the whole announcement. Importantly, every school strongly encourages applications from people who would diversify the legal profession and the environmental law field.
If you're on the entry level market, and you're wondering if these are the only places that will consider hiring an environmental law professor this year, the answer is probably not. These schools have all launched somewhat targeted (or very targeted) searches, but among the schools conducting more open searches, some are probably interested in environmental law candidates.
If you know of an opening I've missed, please feel free to comment or send me an email and I will update the post.
Legal-academic hiring has not been strong in recent years, so this, I think, is a pretty impressive list of openings.
- Dave Owen
The University of Colorado Law School is accepting applications and nominations to fill entry level tenure track positions and/or lateral positions in the following areas: tax law; natural resources, energy, climate change, and environmental law; contracts, corporate and commercial (including consumer and bankruptcy) law; among others. Applicants should hold a law or equivalent advanced degree with a strong academic record, scholarly achievement and teaching skills. Colorado Law is committed to diversity and equality in education and employment. Application materials will be considered as they are received until the positions are filled. Contact by mail or air courier: Professor Sarah Krakoff, Chair, Faculty Appointments Committee, University of Colorado Law School, Campus Box 401, Boulder, CO, 80309-0401 or by e-mail: firstname.lastname@example.org.
The University of Colorado Law School also seeks applicants for a full-time academic year clinical faculty position in its Natural Resources, Energy and Environmental Law Clinic. Founded in 1978, the Clinic was one of the first of its kind in the country.
The clinical faculty member: is responsible for developing a docket of projects concerning natural resources, energy, and environmental law issues; has primary responsibility for supervising students in their case or project work, and organizing/teaching a companion clinical seminar. The faculty member will work closely with the Getches-Wilkinson Center and faculty members who teach environmental law and related subjects.
Candidates must have a JD degree and minimum five years practical experience. Prior teaching experience strongly preferred. Candidates must be licensed to practice law in at least one state and be eligible to sit for the Colorado bar or waive admission into Colorado.
Please submit a resume and three references, with a letter describing: your interest, initial thoughts on the projects you would develop for the clinic, relevant practice experience, and prior teaching experience. Send to: Colene Robinson, Clinical Professor, University of Colorado Law School, Wolf Law Building, 404 UCB, Boulder, CO 80309-0404.
We will begin reviewing applications on September 10, 2017. Teaching will begin August 2018. Rank and appointment classification will depend on qualifications and experience.
The University of Denver Sturm College of Law seeks applications from entry-level and junior-lateral candidates for one or more full-time, tenure-track faculty positions at the rank of Assistant or Associate Professor of Law to begin in August 2018. We seek candidates with J.D. or Ph.D. degrees (or their equivalent), exceptional academic records, relevant professional experience, and the capacity to make outstanding contributions in the areas of scholarship, teaching, and service. Although we welcome candidates across all subject matter areas and methodological perspectives, we anticipate particular interest in the following fields: environmental and natural resources law, including both doctrinal and clinical teaching; evidence; healthcare law; professional responsibility; and regulatory compliance. ... Interested persons should send a cover letter, resume (including at least three references), teaching statement, and research agenda to Professor Alan Chen, Chair, Faculty Appointments Committee (email@example.com).
Louisiana State University seeks to hire three (3) tenure-track or tenured faculty members. Areas of particular interest to us include the following: business & transactional law; civil procedure; criminal law & procedure; environmental law; energy law; ethics and professionalism; evidence; family law; and juvenile justice clinical teaching... We also seek applications for the position of Director of the John P. Laborde Energy Law Center.
Contact: Melissa T. Lonegrass, Chair of the Faculty Appointments Committee, c/o Pam Hancock, Paul M. Hebert Law Center, Louisiana State University, 1 East Campus Drive, Baton Rouge, LA 70803-0106.
Loyola University Chicago School of Law invites applications for a tenure-track position beginning in the fall of 2018, pending final approval of funding. We welcome applicants whose primary area of expertise is Environmental Law with a willingness to teach either Civil Procedure or Property. We are particularly interested in candidates whose scholarship aligns with Loyola’s mission of social justice, as well as candidates who are members of communities traditionally under-represented in the legal profession. We seek applicants whose research and teaching will contribute to Loyola University’s commitment to solving societal and environmental problems, and advance Loyola's position as a national university leader on environmental research, policy and justice. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
Questions about the position can be directed to the Chair of the Committee. Applicants should submit a current Curriculum Vitae, a teaching statement and research agenda, sample publications, and a letter of interest to http://www.careers.luc.edu.
Miami: entry level or lateral candidates in environmental law (I don't have a full position description).
Montana: seeks "one or more full-time, tenured or tenure-track professor(s) beginning in the 2018-2019 academic year to teach Natural Resources/Environmental law courses and direct our Land Use and Natural Resources Clinic and/or to teach Indian law related courses and potentially assist with supervising the Margery Hunter Brown Indian Law Clinic... . For more information about the position and to apply, please visit https://umjobs.silkroad.com/."
Oregon: The University of Oregon School of Law invites applications for an assistant or associate professor (with tenure) in Land Use/Transportation/Green Development Law, to begin in August 2018. Preference will be given to applicants with scholarship, teaching, or practice expertise in land use law, transportation law, green development law, and related fields.
More details here.
Pace University’s Elisabeth Haub School of Law seeks to hire a full-time tenured faculty member for an endowed chair, and is interested in receiving applications from candidates with expertise in Environmental Law and International Law.
Please direct inquiries and letters of interest to Jennifer Chin, assistant to the Appointments Committee, at firstname.lastname@example.org.
Vermont Law School invites applications for a tenured or tenure-track faculty position teaching environmental law courses and potentially a first-year course. Hiring rank will be dependent on the background and experience of the applicant. The successful candidate will be an environmental expert with a strong academic background including a demonstrated interest in scholarship; a commitment to excellence in teaching; and relevant experience in private practice, government service, or non-governmental organization.
Please submit a cover letter, curriculum vitae, and references to Vice Dean Stephanie J. Willbanks, Vermont Law School, 164 Chelsea Street, South Royalton, VT 05068. Electronic applications are strongly preferred and can be submitted to email@example.com. Materials should be submitted by October 20, 2017, although submissions received after this time may be considered until the position is filled.
Vermont Law School also invites applications for a clinical professor at the law school’s Environmental and Natural Resources Law Clinic. The Environmental and Natural Resources Law Clinic at Vermont Law School and Earthjustice are partnering to expand our environmental justice capacity through the creation of a new environmental justice initiative. We are hiring an attorney professor who will be located at the Clinic and will work with Earthjustice’s Healthy Communities program and as part of the Clinic’s growing environmental justice program area. Cases and projects will include Vermont and New England-based initiatives as well as efforts at the national level and in other areas of the United States.
... Please submit a cover letter, resume, law school transcript, writing sample, and references online here https://vermontlaw.interviewexchange.com/static/clients/494VLM1/index.jsp.
The cover letter should clearly convey your interest in and experience with environmental justice communities and issues. The writing sample need not be a traditional legal writing sample but may reflect your past work on environmental justice issues. Electronic applications are strongly preferred and can be submitted online. Applications will be considered as they are submitted. Please submit your information no later than September 15, 2017.
Wake Forest seeks an entry-level tenure-track, assistant professor to begin in the 2018-19 academic year. We are particularly interested in Civil Procedure, Torts, Contracts, but will consider other subject areas including: Family Law, Negotiations, Environmental Law, Land Use Planning, Natural Resources, Energy, and related subjects." Applications should be sent to firstname.lastname@example.org.
Monday, August 21, 2017
The Washington Journal of Environmental Law & Policy (WJELP) invites submissions for papers and speakers for a symposium this winter, focused on environmental justice and the law. Submitted papers should center around how the law currently acts as a barrier to environmental justice and what the law can do to codify protections. Accepted papers will be featured at the symposium and later printed in a monograph book. Paper and speaker submissions are due by November of 2017.
Please submit articles via email to email@example.com or via ExpressO.
For WJELP’s publishing criteria, please see: http://www.law.washington.edu/WJELP/EditorialPolicy.aspx.
August 21, 2017 | Permalink
Wednesday, August 16, 2017
Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities - Jonathan Rosenbloom
Jonathan Rosenbloom, of Drake Law, has posted "Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities." In the article, Rosenbloom highlights the path dependency of local governments in investing in gray infrastructure—hardened, concrete, human-designed structures—rather than investing in projects that integrate ecosystem services into infrastructure projects. He then highlights promising examples of green, ecosystem service-driven infrastructure and how local governments might adopt more effective mechanisms for creating resilience within our nation's cities. Plus, the article has a racy title. The paper can be downloaded here. Here is the abstract:
Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for developers’ construction of infrastructure in conjunction with millions of commercial and residential projects. Such infrastructure provides critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure on private property encourage or compel “gray infrastructure,” as part of private development. Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control and manipulate ecosystems. Often these ecosystems are already providing critical services. This article assesses how current land use laws focus too heavily on engineered, gray infrastructure and how that infrastructure is reducing community resilience to change. By creatively combining human engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure for private development, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.
- Blake Hudson
August 16, 2017 | Permalink
Wednesday, July 12, 2017
For years, I, like many other professors, have been using case studies in the classroom. Some of my favorites have come from the Stanford Law School case study series and from Harvard Law School's series of negotiation exercises (I've used Long River and Flooding, both to rave reviews from students). But I've also created several of my own. In hopes that others might also find them useful, I've provided a short description and a link for each in the text below.
Environmental Law Case Studies:
NEPA/New University Facility Case Study: This case study addresses the application of NEPA to a development in an urban environment. It's designed to raise questions about what counts as an environmental impact, what counts as a significant environmental impact, and how attorneys can advance the interests of different clients through a NEPA process. Each group also receives confidential instructions, which I'm happy to provide but have not posted here.
Emissions Reduction Game: This case study involves an in-class simulation of a carbon trading market. I begin by using a technology-specifying standard and a technology-based performance standard to establish baselines for comparison, then simulate an idealized market, and then simulate a market designed to incorporate a few of the real-world complexities of environmental trading systems. It's usually a lot of fun. The summary writeup here is skeletal, and many of the key details are in confidential instructions for each team (which I have not posted).
Natural Resources Law Case Studies:
Drilling in the Chukchi Sea: This case study considers the application of environmental laws to proposals for offshore drilling in the Arctic. I've used it in a coastal zone law class, but it also would work for an environmental or natural resources law course.
Allagash: This case study considers the application of the Wild and Scenic Rivers Act to a state management proposal for the Allagash River in northern Maine. The case study raises statutory interpretation and federalism issues as well as questions about the meaning and importance of wilderness. The case study itself here is here, and the exhibits are here.
Pitegoff Creek State Forest: This case study asks students to consider alternative management approaches for a new state forest. The fact pattern is hypothetical, but it draws on issues arising in forests in Maine and Oregon. It works best near the end of a natural resources course, when students can use the exercise to synthesize some of the ideas they have been considering throughout the course.
Fishing the Commons. This case study simulates the management of a common resource under conditions of uncertainty. The case study is really just a dice game, with rules spelled out in the short writeup and this Excel table, which contains a very simple numerical model, designed to track the results. It's fun, but it also illustrates how hard it can be to manage a shared-access, theoretically renewable resource under uncertain conditions.
Water Law Case Studies:
Groundwater Regulation and the Takings Clause. This case study uses the fact pattern from Bragg v. Edwards Aquifer Authority, an important takings/groundwater case out of Texas. It requires students to address a variety of thorny takings questions in the context of water use regulation.
Shady Acres. This case study addresses the intersection of water supply and land use law. It asks students to simulate a hearing in which a county board of supervisors will decide whether it can approve a proposed new mega-development while complying with California's show-me-the-water law. The case study also raises deeper questions about resource and land use planning in contexts of environmental uncertainty and change.
Delta Wetlands. This case study addresses water rights trading. It asks students to advocate for or against a specific proposal, advanced in the mid-2000s, to turn several islands in California's Sacramento/San Joaquin Bay-Delta into new, private water supply reservoirs. The case study raises statutory interpretation questions--students must evaluate the consistency of the project with specific provisions of water and environmental law--as well as deeper policy questions about the desirability of water marketing. While the fact pattern is specific to California, I've taught the case study elsewhere (as have other professors), with good results.
Advising Westlands. This case study asks students to evaluate the threats posed by environmental laws to Westlands Water District, a major water supplier in California's Central Valley. Unlike most of the other case studies, the format is non-adversarial; the students all represent Westlands. When I last taught the exercise, an attorney who actually does represent Westlands visited the class and provided feedback on the students' conclusions, but I've also taught the exercise successfully without a guest speaker (and outside California).
The Apalachicola-Chattahoochee-Flint Controversy: This case study asks students to evaluate negotiating positions of the three states involved in the ACF controversy. It's now a little dated--many important legal events have happened since I wrote it, and more or coming--so if you use it, you'd want to explain that you're asking students to evaluate interests as they existed at a past moment in time, not as they exist today.
Leg-Reg Case Study
Plan B Rulemaking Advocacy Discussion Problem. This case study asks students to think about advocacy strategies they would use to persuade an agency to adopt--or not adopt--a rule. The fact pattern is based on Lisa Heinzerling's Plan B Fiasco article, which chronicles a series of rulemaking debacles surrounding the morning-after pill. In creating the problem I also borrowed ideas (and ideas for source materials) from Bill Funk, Sidney Shapiro, and Russell Weaver's excellent administrative law casebook.
If you'd like to use any of these, please do! Let me know how it goes, but there is no need to ask for permission. Many of the case studies here are in Microsoft Word format, so you can easily adapt or update them as you see fit.
Lastly, if you're interested in an entire environmental law book built around case studies (though this one is not available for free), please check this out.
- Dave Owen
Tuesday, July 11, 2017
Here is a blurb describing what is sure to be a though-provoking, engaging conference:
The conference explores the takings issue as it relates to land use, environmental rules and other forms of regulation. In addition to offering a basic education in modern takings law, the conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues. The conference will examine the U.S. Supreme Court's 2017 decision in Murr v. State of Wisconsin and its implications for the future of takings doctrine. Deputy United States Solicitor General Edwin Kneedler will offer reflections on his experience over the last 30-plus years arguing takings cases on behalf of the United States before the Supreme Court. Other topics will include important new developments in the application of the Takings Clause to water management, the relationship between private property rights and housing opportunity, and the property issues associated with siting of renewable energy projects and other energy infrastructure. The primary oral advocates before the U.S. Supreme Court in the Murr case will be speaking at the conference.
July 11, 2017 | Permalink
Tuesday, June 27, 2017
EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama Administration’s signature environmental initiatives, and it was one of candidate and then President Trump’s signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways.
First, I’m not sure I have ever seen a notice of proposed rulemaking that makes so little effort to justify the rule it proposes. EPA and the Corps seem to have offered two, and only two, justifications for switching from the newer regulations to the old ones:
- First, they want to think a little bit more about the implications of Clean Water Act section 101(b), which affirms the importance of state involvement in water quality protection;
- Second, they worry that keeping the new rule could cause confusion if, as I think is likely to happen, the Supreme Court rules that the Sixth Circuit Court of Appeals does not have jurisdiction over challenges to the old rule.
The first rationale isn’t really a justification at all; one could do that thinking with the new or the old regulations in place, and the notice of proposed rulemaking does not even try to explain why the old regulations are more consistent with section 101(b). The second rationale is only slightly less sketchy. In the most confusing possible scenario, the Sixth Circuit would lose jurisdiction over the challenges, the federal district court cases would not be consolidated, and those district court cases would lead to conflicting results, so that some parts of the country are working under the new regulations and others under the old ones. But that still means just two systems in place, and they really aren’t very different. Whether that’s more confusing than operating under the old regulations—which were widely, if somewhat unfairly, lambasted for being confusing—is a tricky question, and a question the notice does not even try to answer.
In short, the agencies’ basic proposal is to repeal now and think and explain later; not once do they try to explain why the old regulations, which they would put back in force until they come up with a new approach, are worth readopting. To put it kindly, that is a fairly novel approach to administrative law. It also is an impossible approach to reconcile with the basic administrative law principles that agencies must offer reasonable explanations for the legal rules they adopt.
Later on, the notice offers a few more gems. It claims that this change “will not have a significant economic impact on a substantial number of small entities.” I think that might actually be true, but it’s completely inconsistent with the overheated rhetoric previously coming from the Clean Water Rule’s opponents, who argued, in then-Speaker John Boehner’s fairly typical words, that the Clean Water Rule would “place landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.” In their defense, the agencies might try to say that the lack of impact arises because the rule is already stayed, but it’s hard to reconcile that claim with their argument that the repeal is necessary largely because the stay might be lifted.
Next comes the claim that “[t]his action does not have federalism implications.” So much, then, for the other justification of the rule: if the other key purpose of this repeal is to think about the federalism implications of Clean Water Act jurisdiction, how can the repeal be completely lacking in federalism implications? Either these claims are false, or the stated justifications are smokescreens (or both).
For months, this administration has suggested, in its rhetoric, that it had little respect for the rules of administrative law. Today’s action suggests, probably to the surprise of no one, that the rhetoric wasn’t just bluster.
- Dave Owen
Monday, June 5, 2017
How do we tax water consumption? And how should we? These aren’t questions that either water lawyers or tax lawyers are accustomed to thinking about. Water lawyers do think, sometimes, about using economic incentives to adjust water use patterns, but they typically assume that those incentives would arise through water trading or through pricing by utilities. Tax lawyers and law-and-econ types, meanwhile, have put quite a lot of thought into carbon taxes, but water rarely seems to enter their discussions.
One might think that mutual lack of interest arises because the fields are completely disconnected. But they’re not. A variety of tax code provisions do affect water consumption. Some do so directly—there’s a production tax credit for drinking water, for example—and some, like the mortgage interest deduction, do so indirectly. All of the interconnections may not amount to much, at least when viewed in comparison to aggregate tax revenues or aggregate water consumption, but they do exist.
And it’s interesting to consider whether more connections should exist. After all, many of the arguments that have made carbon taxes a popular idea (in some circles, at least) also apply to water consumption. In an era of water scarcity and conflict, we would do well to use less water, and economic studies suggest that the persistent pressure of tax liability could promote more water conservation. Taxation also would generate revenues, which could serve a variety of important ends—reducing other taxes, for example, or funding badly-needed upgrades to water infrastructure. The devil, of course, would be in the details, but the basic concept of water consumption taxation is sound.
Or, at least, that’s the argument I make in a recent paper. The paper identifies ways existing tax laws intersect with water law and then makes a broad argument for more ambitious reform. That argument is grounded in law and policy, not politics, and I realize that water taxation would be a tough political sell. But if taxes are, as Justice Oliver Wendell Holmes once put it, “what we pay for civilized society,” then taxing water consumption might be a good way to pay part of that price.
Thursday, June 1, 2017
This post first appeared on The Rural Environment on May 31, 2017 (you can subscribe to posts from The Rural Environment here: https://ruralenvironment.net)
In President Trump’s inaugural address, he stated: “We must protect our borders from the ravages of other countries making our products, stealing our companies and destroying our jobs.” Trump blames job loss on “bad” trade deals, like NAFTA, and economists have expressed great concern regarding Trump’s persistent threats to companies that might do business outside the United States. Trump voters—and particularly those who have been characterized as “angry” rural conservatives that increasingly vote Republican—are not likely comforted by the fact that it is unclear if American job loss is attributable to trade or technology or some combination of the two. They just care that the jobs have gone away. I know these areas. I am from there. Grove Hill, Alabama (Clarke County), has a population of 1,200 people in the poorest and most rural part of the state. But it is difficult for me to fully empathize with rural anger on jobs, primarily because our material-obsessed society has led to overconsumption that has undermined the ability of rural Americans to set aside income and grow household wealth. The failure of conservatives to adhere to the long-standing conservative tenant of fiscal responsibility at least partially explains the rural American plight. It is a failure in personal responsibility.
Both Democrats and Republicans have supported liberalized trade policies over the last thirty years, and these policies have given Americans one thing that they all seem to want—cheaper goods. As the price of goods has dropped dramatically in recent decades, per-capita consumption has risen. Prices of most goods have fallen almost every year since NAFTA, and “clothes now cost the same as they did in 1986; furnishing a house is as cheap as it was 35 years ago.” With cheaper goods in supply, Americans have increased demand. While many residents of Grove Hill may be “angry,” when I visit I see many people of otherwise limited means with flat-screen TVs, new Ford F-150s, smartphones, or many other items that have come to symbolize American prosperity. I doubt rural parts of key electoral states like Michigan, Wisconsin, and Pennsylvania are much different.
The consumptive patterns of Americans, in turn, have significant environmental consequences. By some estimates, if everyone on the planet consumed as much as the average American, we would need about 4 earth’s worth of resources to sustain demand. Consumption directly contributes to water pollution, air pollution, habitat destruction for species upon which we depend (for medicines and other ecosystem services, like pollination), hazardous wastes, and a host of other environmental problems. The environmental strain from overconsumption causes American taxpayers to turn around and expend even more income to fund basic environmental regulatory programs aimed at cleaning up the mess. So, overconsumption results in a double tax—we overspend on unessential items, undermining household wealth, and then must expend even more income to keep consumptive behaviors from harming human health and welfare.
But we should ask: has rural America capitalized on access to cheaper goods, padding household savings accounts to absorb a job loss until families can make a suitable transition to a new job or a new location? Most have not. Consider that at the time of the first Reagan administration, the bottom 90% of households saved 10% of their income. By 2006, their savings rate dropped to nearly negative 10% (though it has since rebounded to slightly above 0%). While rural areas may not be as poor as the narrative Trump used to stoke “rural anger,” rural counties often have even lower savings rates than average American homes. Blaming low savings rates on income stagnation or a host of other prevailing theories is insufficient (in the 1990’s income grew even as savings continued to plummet). So rural America should turn its anger into introspection and consider how personal decisions have contributed to its plight. And voters of all stripes are now primed to better understand the choice society faces between jobs and cheap goods.
U.S. goods are cheap because they can be made more cheaply elsewhere. One result is job loss, and it is difficult to have both the cheapest goods and lots of jobs down the street. Soon after NAFTA was passed, Camptown Togs, a textile mill in Grove Hill, closed. Walmart moved in, and two Walmart Supercenters are now located in Clarke County (total population, 25,000). Jobs were lost. Many other “mom and pop” stores disappeared from Grove Hill city streets. The fabric of the community was damaged, leading not only to job and resident losses but also increases in crime and substance abuse. Southwest Alabama is the poorest region of one of the poorest states in the country. But what do I see in abundance when I visit there? Flat-screen TVs, new Ford F-150s, and smartphones.
In recent decades there have been some fairly visible instances of disdain for the French arising from conservative circles (who can forget “freedom fries“?). Nonetheless, when teaching in France a few years ago I was struck by how proud the country is to protect local shops and to combat Walmart and Amazon from putting the mom and pop retailers out of business. As I discovered, a bag of potato chips may cost 3 times as much in France as it does at a U.S. Walmart, but local shops abound. Perhaps we don’t need to eat all those potato chips after all. And pricing can be a useful tool to signal what products we truly need versus those we merely want. In the end, there is a trade-off between local jobs and cheap goods, and Americans need to carefully consider their options—to be more protectionist for the sake of maintaining jobs and (perhaps?) the fabric of rural communities or to change consumption and saving patterns to capitalize on access to cheaper goods to grow household wealth. Conservative America in particular needs to look inward, since it has elected a man whose rhetoric is the antithesis of the free-market principles conservatives have touted the last few decades.
Ultimately, rural Americans cannot have their potato chips and eat them too. They should exercise the personal responsibility long-touted by conservatives and not place a disproportionate degree of blame on trade and job loss for their plight. They must question whether they really want to turn to a Trump government to interfere with free markets to save them, because that sounds a lot like a stereotypical liberal platform (mirroring a general take home from the New York Times best seller Hillbilly Elegy). Excess consumption harms both household wealth and what was once a fundamental tenant of conservative philosophy—conservation. Jason Clay of the World Wildlife Fund has noted that humans currently consume 1.33 earth’s worth of resources, and that “if we were farmers, we’d be eating our seed. If we were bankers, we’d be living off the principal, not the interest.” Do American consumption and saving patterns mirror foundational principles of conservative philosophy? Not exactly. Rural conservatives have chosen to consume, and not to conserve. The job loss resulting from trade policies that make goods cheap, and the reduced household wealth resulting from reckless excess consumption, have made many of them angry. But by blaming their plight on trade, rural Americans may be unwittingly making their lives even more expensive, rejecting longstanding principles of conservatism, and harming the environment in the process.
– Blake Hudson
Saturday, April 22, 2017
Brigham Daniels, a professor at BYU Law School, spoke today at Salt Lake City's March for Science. We asked for permission to post his remarks, and he agreed.
According to Daniels, it was a challenging speech to give. He said, "I knew that many in the crowd of a few thousand people would not be religious and some would dislike religion, and yet, I was asked to talk about faith and science."
Here are the written remarks he prepared for the speech:
I am a person of faith. I am going to speak about how I view the connection between science and faith.
I would like to begin with a story. A few years ago, my spouse was diagnosed with cancer. As we waited in the Huntsman Cancer Institute for the doctors to operate on her, I tried to put on a brave face. In my heart though, I prayed with desperation.
The operating team assembled. Each of them were women who had devoted their lives to the study of science. Each had allowed the scientific method, research, and peer review to train their judgment.
I felt this team was an answer to my prayers. As so frequently has been the case, God answered my prayers through the goodness of other people—this time good people guided by cutting edge science. Beyond medicine, science blesses our lives in so many ways. It has given us unparalleled libraries at our fingertips, made it possible to better face the challenge of world hunger, provided vaccinations to deadly diseases, increased our quality of life, made us prosperous, freed up our time, and extended our life span.
As a person of faith, I am embarrassed that others would use their faith to deny empirical findings of science. In some cases, this not only is dishonest, but denying the blessings and findings of science also turns a blind eye to God’s goodness, discounts the prayers and service of others, and reduces our ability to help and love each other. Much of the perceived conflict between faith and science comes from people trying to fit God and empirical findings into a tight box that meshes with our prior understanding of God and Universe.
All of us should approach the many difficult questions posed by both science and religion with humility. There is so much we don’t know. There is no shame in this. Rather, it is the beginning of wonder and the seeds of progress.
I would say that rather than shaking my faith, science has helped shape my faith. Science provides glimpses into the grandeur of the Creation, and thereby the greatness of the Creator. MRI machines, DNA research, computer modeling, satellites, experiments, labs, and statistical analysis all provide lenses to enhance our understanding and can add to our gratitude and awe. Even simple observations can do the same thing. Consider the complexity of your hand or the view into the Universe from the night sky.
While science often provides facts relevant to moral decisions, faith and ethics tells us how to act. My faith tells me that air pollution is more than a public health problem. It is a moral problem. Part of loving my neighbor means loving my neighbor’s lungs. My neighbors are also those who live on the Marshall Islands, who are losing their homes due to sea level rise caused by climate change. If we don’t make significant changes, 100s of millions more—the vast majority of whom are poor—will join their ranks by the end us the century. Once understood, faith tells me to show love by driving less, using green energy, and consuming less.
One of my heroes, John Muir, once said of his most treasured landscape, Yosemite, “Yet this glorious valley might well be called a church, for every lover of the great Creator who comes within the broad overwhelming influences of the place fails not to worship as they never did before. The glory of the Lord is upon all God’s works; it is written plainly upon all the fields of every clime, and upon every sky, but here in this place of surpassing glory the Lord has written in capitals.” Protecting open spaces and wildness—and all parts of the creation—is a way to show gratitude to God.
I truly believe that protecting the environment is vital for the human soul.
Thursday, April 20, 2017
At a recent admitted students event, a soon-to-be 1L with an interest in environmental law asked me what she should read this summer. I thought it was a good question, so I shared it with an environmental law professors’ listserve. This post takes suggestions I received and turns them into a short summer reading list.
The list comes with a few caveats. First, I focused on environmental law books. There are many wonderful books about environmental issues more generally, including classics like A Sand County Almanac and Silent Spring that helped inspire the environmental movement, and thus helped create environmental law. Many wonderful books have also been written about law more generally. Those other categories contain enough good books for many summers of happy reading, and perhaps in another post I’ll say more about the general environmental category, but the focus here will be somewhat narrower.
Second, while this list reflects the input of dozens of professors, I didn’t do a formal poll, and any glaring omissions or weird choices can be blamed on me alone.
So, the recommendations:
- The Favorite
Three decades ago, industrial solvents contaminated two wells that the City of Woburn used for municipal water supplies. The awful consequence was a leukemia cluster that killed many Woburn residents. The tragic story also produced what I think is the greatest environmental law book ever written. Jonathan Harr’s A Civil Action tells the story of the contamination and the subsequent litigation. The book is as gripping as a top-notch thriller, rich enough in its legal discussion to be assigned as a companion to first-year civil procedure courses, and deeply humane in its treatment of the human dramas of the tragedy. If you want to read just one environmental law book, this is it.
There’s also a movie, but don’t bother.
- The Storytellers
There are many great storytellers in the field of environmental law, but among academics, no one spins tales better than Oliver Houck and Zyg Plater. In The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River, Plater (now a professor at Boston College) tells the story that gave rise to (and followed) Tennessee Valley Authority v. Hill, a classic case you’re likely to read in your environmental class, if not before. And in Taking Back Eden: Eight Environmental Cases that Changed the World, Houck tells the stories behind a series of David v. Goliath environmental cases from around the world—with David sometimes winning.
- The Backstories
You’ll read a lot of cases in law school. And you’ll often wonder about the stories behind the cases. Some cases—like TVA v. Hill—have whole books devoted to them. But if you want shorter summaries, as well as an introduction to the lawyering that goes into an environmental case, Environmental Law Stories is a great choice. Each chapter in the book tells about a major environmental case and the details are sometimes surprising and occasionally even humorous. For example, Jody Freeman’s account of befuddled, bored, sleepy judges stumbling their way through environmental cases is not to be missed.
- The Consolidated History
In 2004, Richard Lazarus, who now teaches environmental law at Harvard, published what is still the most comprehensive historical account of American environmental law. The Making of Environmental Law is wonderfully accessible—it would make a great companion to an environmental law course, but you would also be able to follow it without prior legal coursework—and it does a great job of explaining the interplay between legal developments and changes in politics and society.
If you’ve followed environmental controversies recently, you’ve heard about coal. President Obama’s efforts to tighten environmental regulation of the coal industry were widely cheered by environmentalists (and economists), but Donald Trump has now made a coal revival into a major priority. But this is nothing really new; coal has been generating environmental controversies, and good writing, for a long time. In The Buffalo Creek Disaster, Gerald Stern tells the story of a disastrous coal sludge spill in the early 1970s and the litigation that followed. Like A Civil Action, the book sometimes serves as a companion to first-year law courses; it introduces you to a wide variety of lawyering challenges in the context of a compelling story. It also is just part of a longer tradition of environmental writing about coal country, with older and more recent examples here and here.
The books I’ve listed here are, of course, just the tip of an iceberg, and if I were to include general environmental writing, the list would grow much, much longer. The list also leaves off several books (Paul Barrett’s The Law of the Jungle is one example) that colleagues recommended and that are now on my own summer reading list. In other words, it’s not at all complete. But sampling some of the works mentioned here would be a great way to introduce yourself to the study of environmental law.
- Dave Owen
Wednesday, April 12, 2017
The Trump Administration plans massive cuts to EPA’s budgets (the latest numbers suggest a cut of around thirty percent). For people who care about environmental quality, this is very alarming. But suppose you don’t personally value blue skies, clear lungs, clean water, or any other environmental amenity, and instead care only about the well-being of American businesses (suppose, also, that you do still acknowledge the reality that other people do value those things). Would you have any reason share the concerns about the proposed EPA budget cuts? The answer, I think, is yes, and here are just a few reasons why.
- Your business may sell environmental quality. Imagine that you run a beachfront hotel, or sell real estate in an area with natural amenities, or you manufacture clothing or equipment for outdoor recreation, or you’re a rafting or fishing guide, or you own a restaurant near a national park, or you sell bottled or tap water, or you run a ski area threatened by warming temperatures. Environmental quality is the part of the good you’re selling, but you probably can’t protect it on your own. For that, you’ll need regulatory oversight, which means you’ll need something like EPA.
- Your business may depend upon environmental quality for manufacturing inputs. Many businesses depend upon a quality environment for their raw materials. Clean water, for example, isn’t just a human health need. It’s also important for many manufacturing processes. If your manufacturing plant can’t use tap water because it’s too polluted—which recently happened to a GM factory in Flint, Michigan—replacing that water could cost you a lot of money. If your city has to pay higher treatment costs because its source water is contaminated, those costs will likely be passed on to businesses. Similar issues can arise if dirty air damages crops or forests, if lost pollinators lead to damaged crops, or if damaged habitat quality leads to declining fish catches.
- Environmental quality may help your business recruit. I used to live in Maine, and quality of life—including environmental quality—was a huge part of Maine employers’ recruiting pitches. Live here, the argument went, and these beaches and rivers and lakes can be part of your daily life (it was a pretty good pitch). Companies in many other parts of the country can offer the same argument. Indeed, in an international recruiting battle with, say, Beijing or New Delhi, any American metropolitan area could offer those arguments, largely because of our history of EPA-led environmental protection. But if the environmental quality goes away, so too does the recruiting pitch.
- Your employees (or their family members) may drink water and breathe air. You might not think of environmental health problems as a business expense. But they are; if an employee’s daughter has a pollution-induced asthma attack, that employee is probably staying home for a day, or coming to work with a lot of extra stress. Either way, productivity drops. Similarly, if lead exposure does permanent damage to a child’s intelligence, that child’s economic productivity is also likely to drop. A healthy population provides a major economic asset (among other benefits). And that’s an asset we ought to grow, not give up.
- Your business model may depend upon environmental mandates. The Trump Administration’s rhetoric includes mantra-like accusations that environmental regulations kill jobs. But there are many jobs that owe some of their value, if not their entire existence, to environmental regulation. Many companies’ business models revolve around finding ways to reconcile environmental protection and economic activity. The environmental consulting industry, which helps businesses figure out how to comply with environmental regulations while continuing to make money, is one example. Wetlands mitigation bankers are another. Manufacturers and installers of energy efficiency technologies are a third. The list could go on and on. Without regulatory oversight from EPA, the incentive to hire these businesses would diminish, if not disappear.
- Your business may want clarity about its environmental obligations. Sometimes businesses need help understanding their environmental obligations. Businesses will often turn to consultants or lawyers for the answers—thus creating work, and jobs, for the lawyers and consultants—but sometimes they will want a cheaper explanation (and sometimes the consultants and lawyers also have questions). A well-staffed environmental regulatory agency can answer those questions when people call, or can put out guidance documents that anticipate the questions before they are asked. In other words, it can provide regulated entities with clarity and predictability, both of which can be very valuable. But if one-third of the office staff are gone, there may be no one to put out those guidance documents or answer the calls.
- Your business may require innovative regulation. Suppose your business model is new, and existing regulations cover its operations—but not very well. You might want regulatory changes that are responsive to the unique needs of your business while also providing the public (and your employees) with the traditional protections of environmental laws. That will mean asking government to work with you to come up with new regulations or new permitting approaches. A well-staffed agency can provide that kind of support. But an agency with bare-bones staffing—or much less than that—is highly unlikely to take on the labor-intensive task of coming up with new and better ways to regulate. Instead, your business is likely to remain burdened with rigid, potentially obsolete obligations.
There is a broader point here. Quite often, we think of relationships between environmental regulators and businesses as adversarial, and sometimes that traditional view is accurate. But business-regulator relationships are also often collaborative, and those collaborative relationships have played a huge part in improving our environmental quality in many ways at the same time our economy has grown. Because collaboration requires staff time, gutting EPA means cutting that collaboration. That will leave many businesses worse off.
- Dave Owen