Environmental Law Prof Blog

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

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

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

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

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

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

 Authors and titles of the posts:

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

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

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

Preparing Environmental Law for the Climate Dystopia

J.B. Ruhl  is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.

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

The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero.  Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.

I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.

The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.        

To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy”  rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights,  but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.  

Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.

So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.

Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.

Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.

Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic.   Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable”  standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.

Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for.  Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.  

Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis.  EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7,  and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.       

Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.

***

These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.   

I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.         

  

Liquid Business

By Vanessa Casado Pérez

Vanessa Casado Pérez is Associate Professor of Law and Research Associate Professor of Agricultural Economics at Texas A&M University School of Law

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

The aphorism “water is the new oil” is now truer than it has ever been. While many use the phrase to suggest that water is as scarce and valuable as oil once was, it is also true in another sense: speculation in water markets now rivals speculation in oil markets. Oddly, however, water scarcity has not translated into a higher price for water, as it has done in oil. But this anomaly may be on the verge of changing as international investors start to enter the business of climate change. From oil tycoons like T. Boone Pickens to international hedge funds,  investment in all things water is on the rise. And while many deny climate change, the market does not. Since climate change is widely expected to induce scarcity in water supplies, business investments in the water market are increasing rapidly.

The alarm has gone off. Those who believe markets should not commodify water are appalled by the role that investment moguls play: all the investments in the water business may lead to price increases for water. There is some merit in valuing water as a scarce resource so that we do not misuse it. The more expensive it is, the shorter our showers would be and the more thoughtful the choice of crops and irrigation techniques will be.

But using the market to allocate water also gives rise to two concerns: the affordability crisis for low-income populations and the inability to capture certain intangible values, such as environmental protection, in a single monetary price. The first concern is often answered by saying that the amount of water needed to satisfy our basic needs is around 1% of the total water used. We could let the market deal with the rest and figure out how to allocate the 1% cheaply. Environmental regulations, such as water quality or minimum instream flows, could address the second.

While the answers to these concerns may not be reassuring, we should take comfort in the fact that water is somewhat speculation-resistant, at least compared to oil. Unlike oil regulation, the regulation of markets for water rights has built-in mechanisms to prevent speculation. These constraints in water markets have driven investments towards related industries, like water conservation technology or reuse.

Water rights can be traded in the Western United States and in other jurisdictions such as Australia or Chile. Trade includes leases and sales of water rights that give the buyer the right to use water if it is available. A common transaction might be one between an agricultural right holder and an urban consumer, because the latter often has a higher willingness to pay and a less elastic demand curve. In the US West, these types of transactions have brought flexibility to water allocation systems, where the majority of water rights were allocated when agriculture was the main economic activity and large cities and suburban areas with luscious lawns had not developed. Those transactions should make the farmer realize the opportunity cost of using water. Transactions are subject to different levels of control.  First, transactions are subject to administrative review. Transactions cannot injure third parties or the environment. Water rights are defined across several variables, including the point of diversion and the type of use. A transaction will normally imply a change in either or both of those variables and is likely to affect third parties.

Another layer, and more relevant for the purposes of speculation, is the forfeiture provision included in all prior appropriation states and many other jurisdictions. These forfeiture provisions mandate that holders of water rights use the water. If they don’t use it for a certain period, usually around 5 years, they may lose the water right.So unlike with real estate or stocks and bonds, where owners can wait for the market to peak and then sell their assets, in water markets, owners cannot engage in this kind of wait-and-see. That said, if water becomes valuable enough, investors may find a way around these rules. One company, Water Asset Management,  is taking that route—considering land an accessory. It focuses on water itself but to get to it, it buys land and it tries to make use of the land to break even. While others have not invested in water rights, they have invested in groundwater or water reuse, which profit from water scarcity.

The question is whether there is something that water law could do to stop big players from dominating the water market broadly understood beyond the forfeiture provision and the approval requirements. It can. Furthermore, water law may be able to target the surrounding industries that investors are interested in. First, regulators could limit the number of shares a single entity could accumulate. One of the main fears is a market dominated by big players. While antitrust regulations are set up to deal with monopolistic practices that harm the consumer, water law can take a page from other natural resources markets and avoid concentration by limiting the amount of water rights that can be accumulated in the same hands. In fisheries’ “individual transferable quotas” programs, there are limits on the shares of the total allowable catch that a single ITQ owner can acquire. This should prevent the concentration of the agricultural industry in a few hands, mitigating the concerns about displacing local farmers.

Second, groundwater should be subject to a permit system like surface water is. Investment companies are keen on exploiting lax regulations and have noticed that in many places groundwater may be more readily accessible as an investment. The separate regulation of a unique resource of surface and groundwater denies the science and makes both, given their interconnection, overexploited.

Third, wastewater regulation needs to be properly designed. As it stands today, return flow belongs to the user who diverted the water. A city may have a water right and divert water from the river. The city does not consume all of it. It usually treats the wastewater and sends it back to the river, where downstream users use it. But if a city decided to reuse wastewater before bringing it back to the river, it could do so, leaving downstream users without the water they have relied on for decades. In some states, like Arizona, cities may be able to not only re-use it in their area but sell the water as a commodity because cleaned up wastewater is considered a new product. While incentives to invest in reuse are paramount, water regulations need to better address the effect on downstream users and the ecosystem needs.

An adage seems appropriate to close this essay. Mark Twain purportedly said that “Whisky is for drinking and water is for fighting.” Water scarcity will certainly cause fights as there will not be enough water for all users. Given the business of water in times of climate change, the question that lingers is whether small water right holders and the environment can put up a fight against these powerful businesses. The three water law measures stated in this essay may be able to help.

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

By Sarah Krakoff and Shannon Roesler

Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School

Shannon Roesler is Professor of Law at Oklahoma City University School of Law

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

Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”

But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.

That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.

Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”

If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.

Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.

In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”

So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.

To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.

You Cannot Disrupt That Which Was Never Ordered – Land Use Policy in the U.S.

By Blake Hudson

Blake Hudson is Professor of Law and the A.L. O'Quinn Chair in Environmental Studies at the University of Huston Law Center.

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

The theme of the 2018 Environmental Law Collaborative, “Environmental Law: Disrupted,” effectively captures the way in which federal environmental law has been seemingly turned on its head under the current administration. It truly feels like a disruption, as if nearly 50 years of environmental progress is not just being halted, but is at risk of being reversed, even on issues that in recent decades seemed settled—like having safe air to breathe and safe water to drink. Of course, we have seen this play out before, such as when Ronald Reagan was first elected and began the rollback of federal environmental protections. But partisanship is much more acute today than it was even then, and the disruption seems to have an air of permanence about it, or at least an air of long-term persistence.

In light of this disruption, many are calling for an increased reliance on the next line of defense, state governments. It is an understandable position, given that some states have demonstrated an interest in addressing environmental problems more broadly, as well as the political will and administrative capacity to do so. Yet for many more states, particularly in regions of the country like the Southeast (where I am from), an understanding of the state’s role in protecting citizens from environmental and associated economic harm, and the development of the political will and institutional capacity to carry out such programs, feels quite remote. In these locations it is arguably not much further developed than it was when the state of Ohio seemed content to let the Cuyahoga River burn in the 1960’s.

But what about the areas of law where there never was a comprehensive, ordered legal approach already in place to be disrupted?—the legal fronts where states have yet to comprehensively exercise their authority to protect the environment, and where the federal government has little to no regulatory safeguards in place? Such is the case with land development that impacts natural resources, and the dearth of policies in place to comprehensively and effectively deal with the scope of the problem. In this space there really cannot be a disruption of the legal regime because there never was a meaningful evolution or progression towards comprehensive environmental safeguards to begin with.

Control over the paving of landed natural capital with development in the U.S. remains an uber-decentralized mishmash of policy approaches (at least in places where there are any policies actually implemented). Land use regulation is the “quintessential state and local power,” as articulated by the U.S. Supreme Court. Thus, the fifty states hold the keys to how land development proceeds, with little input from the federal government (except in the limited circumstances where an endangered species or a wetland connected to navigable waters is present). Most states, in turn, often leave decisions over land use development to the 88,000 subnational governments that stretch across the U.S.—that is, unless the states do not like the way in which local governments are trying to control land development and prevent environmental harm, in which case they can preempt those efforts (here and here).

While the federal government refuses to enter the regulatory space, land development impacts many of the targets of federal environmental regulation. Land development affects water quality (the Clean Water Act), air quality (mobile emissions under the Clean Air Act), and the driver of species decline, habitat destruction (the Endangered Species Act). So the subject matter of federal environmental law could be addressed more effectively if state and local governments engaged in better land use planning.

Considering the lack of federal involvement, and an ad-hoc, inconsistent approach to land use planning at the state and local level (with southeastern states being exceptionally lax regarding land development controls), urban sprawl proceeds apace, and natural capital is being replaced at a profound rate. While some jurisdictions have engaged in innovative land use planning and development, and gains have been made on some fronts, until society begins to view development per se as a complex, “super-wicked” environmental problem, we will not maintain a sense of urgency along policy fronts to address the problem’s scope. We will keep addressing the symptoms of the land development problem (endangered species, poor water quality, poor air quality) rather than finding a cure for the disease.

While explication of the minutiae is beyond the scope of this post, I am currently working on a project developing a typology of factors that contribute to the wickedness of the land development problem (stay tuned). These include the challenges of collective action unique to the land development sector; corporate design of that sector; legal institutional hurdles; economic drivers; intersecting federal policies; property rights; political economy; time/behavioral science/spatial and geographic factors; population/demographics; and an ever-changing natural environment in a time of climate change. Articulating and exploring these factors will be important to both change the dialogue on land development as an environmental problem and to more adequately inform policy responses to address the problem.

In short, the current state of affairs at the national level is a dramatic disruption of environmental progress. But we cannot forget the areas where holistic environmental progress has never been achieved. In a world of growing populations and economic growth tied quite directly to the replacement of natural capital with human-built capital (Texas, a state of 25 million people in 2010 is projected to double to 50 million citizens by 2050 due to rapid economic expansion), we can no longer take our country’s vast expanse of land for granted. We must do better to plan and control growth, the development of our land, and the replacement of our natural capital. If not, we will eventually find the loss of those environmental resources quite disruptive to human progress and well-being.

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-Hannah Wiseman

China Environmental Experiences: Table of Contents

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

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

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

China Environmental Experiences #3: Breathing Air with Heft.  “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”

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

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…” 

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

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

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

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

--Erin Ryan

China Environmental Experiences, Post Script: Returning from China to the U.S.

This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor.  (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.) 

My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid.  As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific.  Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home.  This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing.  It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity. 

(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)

The Long Journey Home Begins.  In departing  Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland.  It was a long trip, but the transitioning away from China began immediately.  Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed.  Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down.  Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis.  We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor.  We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.

Indeed, when we got home, the first thing we did was ate.  And ate and ate and ate.  Especially fresh fruits and vegetables!  Strawberries.  Raw spinach.  Fresh-squeezed orange juice.  I have had a bowl of grape tomatoes on my kitchen counter every day since we got home, replenished like an open candy bowl.  Pesto, chevre, basil… flavors that have never been so missed.  Whole grains.  Sourdough.  Bread baked in my own oven, after a year in which nobody we knew even had one.  Tollhouse cookies, donuts...  my son has eaten a bagel every morning for months and they have not begun to lose their allure.  We knew that our Chinese friends return from the U.S. with exactly the same desperation for their own food culture, but that didn’t alter the joy of our own reunion.

And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy. 

On our second or day back, I went grocery shopping with my four-year old son.  I was mentally prepared for how psychologically fraught this might be.  I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time.  I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption.  I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused.  Everything was so sterilized, and there was just so much of it all.  No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything. 

I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands).  It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.

I shut my eyes, centered my breathing, and considered how much we wanted those strawberries.  And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping.  Like I had never left.  In fact, I knew exactly what to do.  I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter.  Suddenly, it wasn’t so strange after all. 

Which became its own haunting experience: was all this excess really my personal norm??  So help me, it was.  This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore.  But why didn’t they know how abnormal it really was?  Don’t they know what the rest of the world eats and where they find it?  That most people alive today (or at any time in history) could never imagine a place like this?  Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all?  Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?

Strangers in Our Own Land.  Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing. 

It was hard to get over how clean the world suddenly seemed.  Like a movie set, because it couldn’t really possibly be that clean.  The streets and houses are clean.  The air is brilliant; sweeter than I had imagined.  Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight.  We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure.  Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates.  But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.

There is not so much litter here in the U.S., and not so much dust.  We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China.  (No exaggeration: our East China home dusted in the morning was saturated again by evening.  But then again, we all know what dust is mostly made of—dead skin cells.  There are more than a billion people crowded along China’s East Coast; you can do the math.)  Nature in the U.S. is spectacular.  The grass really is greener; the sky improbably blue.  The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it.  And yet we also have to remember not to look directly at the sun, as we so often could in China. 

This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky.  But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood!  We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school).  And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance. 

My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling.  But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed.  At first, the teachers didn’t know what to do with his hesitation to act independently.  “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!”  After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition.  And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.

Cultural Pride and Cultural Shame.  Public safety and sanitation is different here.  It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along.  I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China.  I no longer worry about giving my child medicine when he is sick.  That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown.  I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.

But there are also moments of immense cultural pride.  I cannot boast enough about American tap water, with which we are all hopelessly in love.  Drinking directly from the sink never gets old, and Oregon water is especially heavenly.  My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried.  We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water.  Nothing!  (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)

Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water.  It feels excessively wasteful.  It boggles my mind to see people using it to sprinkler lawns and wash cars.  “No, no,” I think, “are you crazy?  You could drink that!”  But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash.  Which is obviously insane, especially in the arid West.  I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore. 

At Home in America.  Our neighborhood is lovely with trees and grass and wildlife, but strange with people.  It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car.  If you don’t walk a dog, it’s easy to never see neighbors face to face.  In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers.   Public spaces are alive with community in China, but here, we are much more isolated.  We live close to our neighbors, but with little random interaction.  With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience. 

Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points.  Public spaces are so empty by comparison.  The country is so empty, with vast unpopulated tracts of land.  “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind.  One student has his own room for the first time in his life—and he hates it.  There is nobody to talk to.  Nobody to care if you are even there or not.

While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first.  But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore.  A little dirt won’t hurt, we tell ourselves; how bad could that floor really be?  (There’s barely even any dust!)  And for that matter, why bother with organic?  Why sweat the preservatives?  After our year abroad, we have been fully absolved of the illusion that our bodies are temples. 

But our house—goodness gracious—is ridiculously, shamefully big.  I was deeply embarrassed when my Chinese students came to visit us in December.  I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays.  But at the same time, I cringed at the thought of showing them where I live.  I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives.  True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.

That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it.  It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone.  I returned from China with bursitis in my hips because Chinese beds are so hard.  But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests.  There is wall-to-wall carpeting, with padding beneath.  On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable.  Embarrassingly, my body wilted into the cushions like a crying child to her mother.  My fallen arches stopped screaming about the constant concrete floor underfoot. 

Of course, this too is purely a matter of culture.  One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft.  Everything in the US is so unbearably soft, he complained—even the floors are soft!  “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.

Freedoms for Granted.  The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet.  Tiananmen.  Terrorism.  When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration.  What our parents tried to teach us about our roles in the world. 

My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself.  In the wake of Tiananmen, these were survival instructions.  They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background.  Then they asked me what my parents taught me while I was growing up.  I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary.  We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.

In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague.  I could write freely.  I didn’t have to be purposely ambiguous about connecting names with events or statements.  I could make full sentences rather than mnemonics.  For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing.  I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.

I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home.  After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely.  My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email.  But now, nothing I said could hurt anyone anymore.  I could relax!  But no, I couldn’t relax.  It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.

Between Worlds.  So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left.  Supermarkets aside, it was remarkably easy to rejoin American culture.  Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules).  I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time.  I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away.  I knew how to operate American culture like an expert.  It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside. 

Yet reverse culture shock sneaks up on you.  A few weeks after we got back, I fell into what I can only describe as a brief but intense depression.  I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to.  I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer.  Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home! 

But these were guilty pleasures, most, because of course life is nicer in the first world.  Back now to that dizzy place.  How to feel about all this?  What about those we left behind?  So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind. 

Then again, I know I’m not really leaving it all behind.  Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now. 

Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed.  As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college.  As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year.  He was so proud to be Chinese again, if only for the day.  The next day, he was happy to be an American again, romping freely around the neighborhood playground.  So yes, he is a clearly a child of two worlds now. 

And in some smaller way, I guess I am too.

 

--Erin Ryan

Previewing Decker v. Northwest Environmental Defense Center

In its upcoming term, the Supreme Court will consider two Clean Water Act/stormwater cases, which I think is two more Clean Water Act/stormwater cases than the Court has heard in all of its previous terms, combined.   A few weeks ago, I posted about NRDC v. County of Los Angeles, which arises out of urban runoff and stormwater infrastructure in Los Angeles County.  The post, in a nutshell, expressed my befuddlement about why the Court took the case.  The other case—Decker v. Northwest Environmental Defense Center—is an entirely different story.  It contains thorny jurisdictional and statutory interpretation questions, and the stakes are high.

The case addressed stormwater runoff from two privately-operated logging roads in Oregon’s Tillamook State Forest.  The logging companies had channelized the runoff though systems of culverts and ditches, and the runoff was conveying sediment—which meets the CWA’s definition of “pollutant”—into surface rivers and streams.  The companies didn’t have National Pollutant Discharge Elimination System permits for these discharges.  According to the environmental plaintiffs, those unpermitted discharges violated the law.  The defendants moved to dismiss the case, and while the district court granted the motion, the Ninth Circuit reversed.  Its opinion cast doubt upon—and, perhaps, invalidated, though that point is in dispute—EPA’s decades-old regulation exempting some silvicultural activities from point source permitting.

So why is this a case to watch?  A few reasons:

1.  The Stakes.  The United States contains a lot of logging roads.  Those roads may be relatively invisible to most urban dwellers, but their aggregate length is fairly mind-boggling; in Maine alone, for example, one of my colleagues estimates there are about 15,000 miles of logging roads.  Not all of those roads have stormwater conveyance systems, but many do.  You can’t have forests without rain, and, in many places, you can’t protect a road from erosion without channelizing the runoff.  The number of discharge points potentially affected by the Court’s decision therefore is huge.  And, as one might expect, the environmental and economic implications are substantial.  Logging roads can be major sources of sediment, and the water quality benefits of improved sediment controls could be significant.  On the other hand, with so many miles of roads, the costs of managing that sediment could add up, as would the administrative burdens associated with drafting and implementing new permitting approaches. 

2.  The Jurisdictional Issues.  The case below involved a challenge to EPA’s longstanding approach to silvicultural stormwater runoff.  With a few narrow exceptions, EPA has never sought to regulate stormwater runoff from forestry activities, and in 1976 it issued regulations that exempt some—perhaps most—forestry activities from the NPDES permitting program.  The plaintiffs argued, and the Ninth Circuit agreed, that this exemption was inconsistent with the text of the Clean Water Act.  But there’s a jurisdictional catch.  Section 509(b) of the Clean Water Act compels petitioners to challenge EPA’s actions in the United States Courts of Appeals, and to do so within 120 days of the action, unless the cause of action could not be brought within that time period.  The plaintiffs here brought their case in a federal district court, and they brought it decades after EPA issued its silvicultural rule. 

The Ninth Circuit found this approach unproblematic.  It concluded that because the plaintiffs could not have brought their action within 120 days (EPA’s broad interpretation of the silvicultural rule was never really clarified, according to the court, until the litigation commenced and the United States filed an amicus brief), section 509(b) didn’t apply.  That was a mistake, according to the defendants and intervenors; they argue that even if the Ninth Circuit was correct that the 120-day period couldn’t have been met, the case still had to be brought in a court of appeals.  But the environmental groups counter that they weren’t really challenging EPA’s silvicultural rule itself, but instead were challenging private actions, which the private entities then attempted to defend by relying on an impermissible interpretation of EPA’s stormwater rule.  In those circumstances, they argue, section 509(b) doesn't apply at all.  If it all sounds rather complicated, well, it is.  But that jurisdictional argument will likely receive some significant attention from the court.

3.  The Merits.  On the merits, the case raises two major issues.  First, do the ditches in question meet the Clean Water Act’s definition of a point source?  That issue seems, to me at least, like an easy one.  No matter what EPA's silvicultural rule purports to say, it seems impossible to credibly interpret the Clean Water Act’s definition of point source—a definition that includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel…”—to exclude discrete, discernible systems of roadside ditches, pipes and channels. 

But in 1987, Congress amended the Clean Water Act in ways that complicated the matter and created the second key merits issue.  The 1987 amendments struck a compromise between EPA’s longstanding resistance to regulating stormwater runoff and Congress’s (accurate) sense that stormwater runoff created significant water quality problems.  In CWA section 402(p) Congress exempted stormwater runoff—even stormwater runoff that is discharged from a point source—from regulatory coverage.  But it then designated several types of point source stormwater runoff that still would be covered by the NPDES program, effectively creating narrower exemptions from the broad exemption.  One of those sub-exemptions was for “discharges associated with industrial activity,” which begs the question: are stormwater discharges from forestry “discharges associated with industrial activity?”

EPA’s answer to this question (given at 40 C.F.R. 122.26(b)) was muddled.  It clearly considered forestry to be an industrial activity, but seemed to say that stormwater discharges associated with forestry were not “discharges associated with industrial activity,” unless those discharges derived from one of the activities the 1976 silvicultural rule said would be covered.  The Ninth Circuit rejected EPA’s answer (or at least rejected an interpretation of EPA’s answer under which the 1987 amendments exempted silvicultural stormwater from regulatory coverage), and the defendants/petitioners now argue that the Ninth Circuit’s approach was in tension with Chevron v. NRDC.  Not so, say the plaintiffs; in their view, the Ninth Circuit (which did cite Chevron as its standard of review) appropriately applied a clear statute.  Those questions (to which I have not done full justice here; they’re much too complicated to fully explain in a few paragraphs) also will likely occupy much of the Court’s attentions. 

4.  The Federalism Questions:  Lurking behind these statutory construction issues are some important implications for our federalist system.  As co-blogger Blake Hudson has often pointed out, management of private and state forests remains an area of state primacy, with relatively little federal involvement.  On the other hand, water quality protection is well established as a shared federal and state prerogative.  This case puts those traditional approaches in tension.  That tension shouldn’t be overstated; in some areas, new CWA-based permitting requirements would supplement, and might not significantly add to, existing state regulatory approaches.   Much of the implementation of those new requirements would be done by the states, most of which have delegated authority to implement the NPDES program.  Nevertheless, in areas where state and local regulation of forest practices is minimal—and there are many such areas—this case could ultimately lead to significant changes in the ways forest roads are built and maintained, and those changes would occur pursuant to federal law.

So stay tuned.  The Court’s decision probably won’t be easy reading; complex statutory interpretation cases rarely are.  But it should be interesting, and it will be important.

-Dave Owen

 (image from wikimedia commons; M.O. Stevens, photographer)

Mingo Logan Coal Co. v. EPA, On Appeal

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

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

EPA's brief is due on July 18. 

-Emily Meazell

China Environmental Experiences #4: Wifi Without Potable Water

This is the fourth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, and April’s account of air quality issues in China.) 

This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power.  China is the world’s fastest-growing major economy—the second largest economy of all nations, the largest exporter, and the second-largest importer in the world.  It is a nation with 500 million Internet users, 100 million cars, and the world’s largest standing army.  It is the third nation on earth to independently launch a successful manned space mission, with plans to send astronauts to the moon in the coming years.  At least in urban areas, China is a thoroughly modern, explosively developing place—with department stores selling Prada, goofy reality TV, and wifi at the local tea house... but you still can’t drink the water.

Visitors to China are carefully warned that the water is not potable and must be boiled thoroughly before consumption.  Every hotel room has a small water boiler for this purpose, and the more expensive ones provide a nightly bottle of safe drinking water by the bedside.  Water quality problems are traditionally associated with the continuing use of “night soil” (human and animal waste) to fertilize crops—an effective and inexpensive alternative with an inexhaustible supply.  Yet the problem continues even as farmers embrace more modern chemical fertilizers (perhaps too heartily, at the alarming expense of soil health), and as other contaminants enter the water supply.  While visiting the old city of Lijiang in Yunnan Province, for example, I rose for an early morning walk to find cooks cleaning the carcasses of recently killed animals, intestines and all, directly into the Venice-like canals from which others draw their drinking water.

Shortly before our arrival, we were warned by a vaccination nurse familiar with the most dangerous waterborne diseases to only sponge-bathe our 3-year-old, rather than risk his inadvertent exposure to waterborne parasites through his open eyes or mouth in a shower.  Once here, we quickly decided that this level of precaution was unnecessary, at least in urban areas where the municipal water supply receives some level of filtration or disinfection before reaching the tap (especially true in Beijing).  Still, we have learned well the rules of life here in China: drink only boiled or bottled water, no ice that can’t be sourced to boiled or bottled water, no fruits or vegetables that haven’t been cooked or peeled, and brush teeth with tap water at your own risk.  (Some friends do; others, including me, don’t.)  You should also ensure that bottled water is truly factory-sealed, as scandals have occasionally revealed empty bottles refilled with tap water being resold as new.

Without a doubt, adapting to life without potable water was the biggest cultural adjustments for us when we arrived last summer.  The first consequence was minor physical dehydration: without easily accessible clean water to drink, we drank less, and soon found ourselves more easily exhausted, ornery, and sick.  (Indeed, nothing confirms the critical nature of this life-sustaining resource more effectively than losing the taken-for-granted tap.)  Every journey away from our apartment involves water planning, as we take careful stock of how many are traveling, what will be needed, and how best to transport it.  I seem to drink more than my Chinese friends, but I still seem to be always thirsty. 

And there were other puzzling features of our new world.  For example, we struggled to understand at exactly what point our dishes were clean enough to eat off after washing them in tap water.  Were the still damp chopsticks safe to use, or the recently-washed cup still bearing that fine sheen?  And when dealing with my son’s inevitable scraped knees and elbows, was it better to wash with soap and water to disinfect, or was the water itself a source of potential harm?  (For the record, we have decided that dishes must be completely dry to be safe, and that cuts should be washed with soap and water until the dirt is out, but subsequently sterilized with disinfectant whenever possible.)

Chinese culture adapted long ago to the perils of non-potable water.  Chinese people boil all their water before drinking it, but it doesn’t seem like a burden, because they prefer to drink their water hot.  They range from amused to amazed when foreigners request cold water, which to them is as distasteful as drinking plain hot water is those foreigners.  When I invite my students to ask questions of cultural exchange—anything they want to know about American culture, politics, or lifestyle—the most frequent question is always “Why do Americans like to drink cold water? (Yuck!)”  Perhaps as a result, there is no groundswell of popular sentiment to “do something” about the water situation.  From the perspective of most Chinese, there is no problem with the water.  Everything is as it should be.

Yet China is suffering from increasingly serious water pollution problems that can’t just be boiled away.  Chemical pollutants entering the water supply from industry and agriculture are getting worse, involving toxins oblivious to disinfectants.  The World Health Organization has identified 2221 different pollutants in waters worldwide, and 765 of them in drinking water—but current drinking water standards test for only 35 indicators, and new criteria that will go into effect on July 1st will regulate only 106 pollutants.  (Source: Dr. Yu Ming, water pollution researcher at Ocean University of China.)  Chinese lawmakers and the Ministry of the Environment are struggling to cope with these problems through the PRC Law to Prevent and Control Water Pollution, but the even greater hurdle for environmental law is that of implementation. 

Even where China’s environmental laws are comprehensive, their goals are imperiled by under-enforcement.  Illegal discharging is reportedly very common, because there simply aren’t enough agency personnel to monitor them.  And even when violations are discovered, they may or may not be prosecuted by the relevant government agency—depending, perhaps, on the economic importance of the violators, or their political influence.  When the government fails to act, it can be hard for citizens and NGOs to take up the slack, because most Chinese courts don’t recognize standing for public-interest citizen suits.  And even if traditional standing were established by a directly injured party, the court may or may not decide to hear the case (for my money, one of the most surprising features of the Chinese legal system).  For these reasons and others, enforcement is usually seen as the major weakness in China’s environmental law regime.  Perhaps China’s new experimentation with a handful of specialty environmental courts will help redress these important problems.

In the meanwhile, water quality problems intersect with and exacerbate other environmental problems.  For example, one unfortunate consequence of unreliable tap water is the resulting prevalence of disposables: single-use bottled water, disposable plates and bowls, even the single-use toothbrushes that hotels at every level routinely provide.  I spent the last year spearheading a university sustainability initiative that sought personal pledges to avoid bottled water and other disposables as much as possible, so it was particularly jarring for me to adjust to this new norm—where we are happy to eat at a restaurant that provides disposable bowls, plates, and chopsticks, because we know they won’t make us sick that evening.  (And I was happy to note that, at least at our favorite local restaurant, the plasticware is marked as biodegradable.)  By contrast, at restaurants that provide the reusables I normally seek out at home, we nervously try to sterilize them with hot tea before using them, because they have likely been rinsed in the too-thoroughly recycled dirty dishwater that compounds the problems already coming out of the tap.

So, after religiously toting my reusable aluminum bottle to my every American class last year, I now carry plastic bottles of water everywhere.  And though I reuse the small bottles as long as possible rather than discarding them after a single use, they are usually filled with water that I get at home from the water-cooler bottle that many Chinese families use.  On any given day, you can spot a handful of strong men riding motor-scooters with an improbably number of these strapped to the back, exchanging filled ones for empties at private homes and businesses.  I’m happy to report that at least these large bottles are faithfully recycled.  But I’m unhappy to say that smaller plastic bottles litter the streets, parks, mountains, landfills, beaches, and accordingly, rivers and oceans.

Neither is the important relationship between water quality and water quantity lost on China, which has one of the lowest per capita rates of fresh water in the world.  Northern China is arid and especially lacking sufficient water, marked by some of the world’s great deserts, like the Gobi and the Taklimakan.  But it rains plentifully in the south and along much of the coasts.  As a result, China has erected the most massive water-delivery infrastructure in world history to shift enormous quantities from south to north, a project already underway for fifty years and scheduled for completion in another forty.  Linking China’s four main rivers together in a network of diversions, it will eventually move almost 50 billion cubic meters of water annually.  Although the project has already caused its fair share of negative environmental consequences and human displacement, most of the Chinese I have spoken to—even those from regions in which water is taken—are comfortable with the need for extreme inter-basin transfers to support northern population centers like Beijing.  And they are proud of the ingenuity and engineering that underwites this aspect of "man-made China."

Like nearly everything else in China, its history of mind-boggling human interventions with water began thousands of years ago.  I had the opportunity to explore a classic example last week while visiting the Turpan Depression near Urumqi in Xinjiang.  Turpan is the lowest and hottest place in China, at 150 meters below sea level and in the middle of China’s most arid province.  And yet there in the desert was a blooming oasis of vineyards, agriculture, and Uighur community.  How was it possible?  It is because 2,000 years earlier, the people who still live there dug 5,272 kilometers of underground canals with 172,367 vertical well shafts to collect and redistribute the groundwater accumulating from melting snow on the nearby mountains.  At its height, the “Turpan Karez” channeled 858 million cubic meters of water into 1,784 lines to distribute it to all parts of the region.  (You can’t even imagine what this looks like—best to see it, so try this aerial photo and this diagram).  It is a staggering feat of civilization—a celebration of creativity, environmentally sustainable terrascaping, and the human ability to thrive against all odds.

Modern-day Urumqi, the capital city of Xinjiang, relies on similarly creative water technology.  During my visit, I saw acres of recently planted, spindly young trees in the desert outskirts of the city, lined up like toothpicks piercing the mostly barren earth.  I would often ask my hosts, “How will these trees take root?  With what water?”, and I was always told, “Oh, there is enough water here in Urumqi.”  I knew that the trees had been planted for environmentally sound reasons—to help stabilize the soil, moderate ground temperature, and trap airborne dust—but I still couldn’t understand how they would survive in such arid ground, only occasionally studded with dwarflike sagebrush scrub.  In my broken Chinese, I would persist, “but if there were really enough water to grow trees, wouldn’t there already be trees here?”  And they would quietly insist, “no, no—there will be enough water,” though I could never understand from them why. 

Then on my last day, I visited a popular public park in the middle of the city, where the temperature was ten degrees cooler thanks to the canopy of the many mature trees that ringed its central hill and the banks of the creek flowing around it.  I followed my idle curiosity to the crown of the hill, where I was astonished to find a complex terrascaping system for just this park.  There was a small, swimming-pool like reservoir at the top, supplied by a large pipe snaking up the hill (it wasn’t clear to me from where), and a network of canals extending radially outward down the hill in all directions.  Indeed, the park’s oasis was created in the same manner as the Turpan Karez: decades earlier, the now lush trees had been planted in rings around the hill, and the reservoir fed them a steady supply of water through the canals at their base.  I was awed by the success of the project, and the clear joy it gave the city residents who collected there en masse to enjoy its peace and beauty.  And I suddenly understood what mechanisms were likely helping those new trees take root in the desert surrounding the city.

With such scarcity at hand, China is trying harder and harder to avoid squandering its precious water resources with regulatory efforts targeting both quantity and quality.  Wherever there are flush-toilets, they are almost always low-flush toilets, with separate levers for the two types of waste they will encounter (one of which needs a stronger flush than the other).  Solar-powered water heaters effectively reduce consumption by limiting hot water to what can be stored on the roof at any given time (although the more expensive ones have a gas or electric backup).  Greater efforts are being made to reduce use and recycle water wherever possible.  Hopefully, China will find a way to enact and enforce more effective water pollution laws to avoid further industrial and agricultural degradation of its water resources. 

But for what it’s worth, I’m told there are no great plans on the horizon to achieve potability from the tap, because potability is just not a cultural priority in China.  So the mantra will continue: boiled or bottled, cooked or peeled, rinse at your own risk…

 



--Erin Ryan

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

 

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

I'd been called for jury duty.

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

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

Hard Bargaining Rewarded

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

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

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

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

Lost Hope for a Speedy Trial?

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

The Main Course

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

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

--Rob Verchick  

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

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

Some Background

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

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

The Chevron Analysis

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

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

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

A Few Words About Tone

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

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

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

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

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

--Emily Meazell

Live Blogging from Silent Spring @ 50

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

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

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

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

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


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


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


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


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


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


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

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

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


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


• "Everyone has a stake in the oceans."


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


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


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


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


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

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

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


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


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


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


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


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


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


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

-Lincoln Davies

New Series: Environmental Adventures in China

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

--Erin Ryan

ABA's 41st Annual Conference on Environmental Law

The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City.  If you have not been before, this is one of, if not the, premier environmental law conferences in the nation.  (If the weather turns right, there could also be really great skiing.)  The conference used to be known as the "Keystone Conference."

As usual, there is a fantastic line-up.  Just a few samples include:

• Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions


• Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption


• Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal


• Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion

Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).

To register, go to the conference website.

-Lincoln Davies

Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?

When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.

Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?

The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).) 

Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co.,  (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).

No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)

Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.

First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.

PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.  

Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.

As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?

From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.

Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.

Call for Articles - Fordham Environmental Law Review

In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water.  They have issued a call for papers, with a deadline of December 15, 2011.  The details follow:

CALL FOR ARTICLE PROPOSALS

The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40^th anniversary of the Clean Water Act.

The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights.  Articles may address state, national, or international issues. Suggested topics include:

Clean Water Act Hydrofracking Waste water treatment and disposal Citizen suits Invasive Species Conflicts between federal and state rights Congressional activism on environmental/ energy/resource issues Environmental enforcement at the federal, state and local level

EPA and Surface Mining Act Agency issues Congress v. Agencies Role of science Cross-jurisdictional consistency/standards

ARTICLE PROPOSALS ARE DUE BY December 15, 2011.

Authors will work with an editor from the ELR Board throughout the publication process.  Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation).  ELR article guidelines can be found on the ELR website at: http://law.fordham.edu/fordham-environmental-law-review/5518.htm.

Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review

-Lincoln Davies