Friday, January 13, 2012

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

January 13, 2012 in Current Affairs, Energy, Land Use, Law, North America, Sustainability, Travel, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Thursday, December 1, 2011

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.

December 1, 2011 in Current Affairs, Governance/Management, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

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 40th 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

 

November 16, 2011 in Climate Change, Current Affairs, Governance/Management, Law, Sustainability, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 2, 2011

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Sunday, August 7, 2011

In Case You Missed It -- The Week of August 1-7

* The famine in Somalia continues to worsen.

* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.

* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions.  The hope is to spur greater use of carbon capture and sequestration technology.

* A new PAC has formed to promote energy efficiency legislation.

* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.

* The leopards are not happy.

August 7, 2011 in Africa, Biodiversity, Climate Change, Current Affairs, Energy, Land Use, Law, Legislation, North America, Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack (0)

Monday, June 27, 2011

Environmental Freakonomics: Bottling Water Not So Bad After All?

Bottled Water As I got deeper and deeper into my Natural Resources Law and Policy material on water, I lamented to a friend that "we just don't have enough water." My friend, an economist, said "no, we just don't have enough properly priced water."  My concern was driven by a Scientific American article about the Ogallala Aquifer, which supports the breadbasket of the world and stretches all the way from South Dakota to Texas.  In West Texas alone, the number of irrigation wells grew from 1,166 in 1937 to more than Ogallala  
66,000 in 1971.  The overdraft of the aquifer in 1975 was equivalent to the entire flow of the Colorado River, but today the aquifer is being depleted at an annual volume equivalent to 18 Colorado Rivers.  In some places agriculture is withdrawing four to six feet a year, and nature is putting back half an inch.  Natural aquifer recharge would would take 6,000 years if it were to be fully drained.

In a fascinating guest post on freakonomics.com, Charles Fishman describes some of the drivers of water overconsumption within the context of a very interesting case study. Fishman highlights a move by the National Basketball Association's Cleveland Cavaliers to remove all of the 18 water fountains in Quicken Loans Arena (the "Q"). As an alternative to the water fountains - which, of course, provided free water - the organization directed people to free cups of water available in the concession stands, or patrons could purchase a $4 bottle of Aquafina. Of course, to receive either of those options, people had to be willing to stand in line - which can be a lengthy proposition at a sporting event.  Three months passed, and over 1 million spectators attended events in the Q with not one complaint.  About halfway through the NBA season, however, a newspaper reported the removal of the water fountains.  The fans were furious, even though the Q had sold out 29 home games prior to fans' awareness of the removal. The Q scrambled to put the water fountains back in.

This story demonstrates, first, the entitlement people feel toward things that they obviously do not need - which is a disturbing commentary on the societal drivers of overconsumption and environmental degradation as a general matter. But second, the story raises some very interesting facts about water and why we should consider paying more for it. Fishman notes that if you buy a 17 ounce bottle of water for $0.99, you could take it home and continuously refill it every day with tap water for 6 years before you spent $0.99 on that amount of tap water! Even cheap bottled water is 2,000 times more expensive than tap water at home.  This demonstrates an amazing disparity between what we are willing to pay for water when we are at sporting events, on road trips, going to the beach, etc., and what we are not willing to pay, and indeed feel entitled to, in our homes - the place where most water overconsumption occurs. Fishman notes that "[R]esidents act as if increasing the water bill from $23 a month to $30 a month will force them to choose between their heart medicine and their water," even though the average household water bill in the U.S. is less than half the average cable TV or cell phone bill.

Though there are obviously big problems with bottled water - not to mention the toxic chemical and waste disposal issues posed by the plastic used to manufacture them - when considering overconsumption of water it may be useful not to rely too heavily on conventional wisdom ("convenient wisdom") regarding the parcelization of water resources. As Fishman notes, "'Free' is the wrong price for water. In fact, the lack of a price for routine water service is the most important thing that’s wrong with water — resources that are free are wasted; there’s no incentive to learn to use them smartly; there’s no money to maintain and modernize the existing water system; there’s no incentive to reach back and protect the source of something that’s free."

- Blake Hudson

June 27, 2011 in Economics, Food and Drink, Sustainability, Water Resources | Permalink | Comments (2) | TrackBack (0)

Monday, May 30, 2011

When All Else Fails Bring Up the "Other" Carbon Problem

When confronted with friends or students who may be skeptical of the human role in climate 1 change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO2 the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the 2 beginning of the Industrial Revolution. 

A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity. 3

Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms. 

It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of COand other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial. 

For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:

 

- Blake Hudson

May 30, 2011 in Biodiversity, Climate Change, International, Law, Physical Science, Science, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, May 2, 2011

New Supreme Court Opinion on Water Law

Today the Supreme Court released its opinion in the case Montana v. Wyoming.  This water law case presented the issue of whether, under the Yellowstone River Compact, an appropriator can use more efficient methods to disseminate water, so long as the appropriator uses the water to irrigate the same amount of acreage.  The Supreme Court held that it could even if changing watering methods would reduce the amount of return flow.

The Court upheld the decision of the Court appointed Special Master--Buzz Thompson--and the decision cites among others David Getches and Mark Squillace, and the great textbook by Sax, Thompson, Leshy and Abrams.

The Court's majority was made up of seven Justices, with Justice Scalia dissenting and Justice Kagan not taking part in the decision.  While I enjoyed seeing the names of law professors I respect in the opinion and enjoyed reading an opinion about water law, for me, the most memorable part of the opinion came from Justice Scalia's dissent when he refused to call the people of Wyoming Wyomingites and instead called them Wyomans.  He did this, because, as he put it, "the people of Wyoming deserve better."

A more detailed summary of the opinion can be found here on SCOTUSblog.

-- Brigham Daniels

 

May 2, 2011 in US, Water Resources | Permalink | Comments (0) | TrackBack (0)

Thursday, April 21, 2011

Adler on Climate Adaptation and Drought

Bob Adler has posted to SSRN a fascinating new article on drought's role in climate change.  Specifically, Prof. Adler argues that policy will need to shift how it balances the compassionate impulse to offer relief in times of disaster and the ways in which it encourages and discourages risky behaviors.  Noting that we are already "committed" to a certain amount of climate change because of past greenhouse gas emissions, Adler concludes:  

"[V]ulnerability increases with the frequency of the event, which decreases the recovery interval between disasters.  The result will likely be a vicious cycle of relief and increased risk.  Given the likelihood of this scenario, perhaps a more 'compassionate' approach is to implement systemic policies to reduce vulnerability to climate-induced disasters by increasing the sustainability of various economic sectors in advance."  To demonstrate what changes we might make, Adler uses the agricultural industry, though there are of course applications to numerous other economic sectors.

Adler's article is an important addition to the climate change literature, in particular because it adds to the growing discourse on climate adaptation -- and the increasingly clear consensus that we need both climate change mitigation and adaptation.  The focus on water is especially apropos given the close nexus between water availability and one of the key climate change inputs: energy production.

The article is Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law.  It can be downloaded here.

The abstract:

This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.

- Lincoln Davies

April 21, 2011 in Agriculture, Climate Change, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Roy Gardner on "Lawyers, Swamps, and Money - U.S. Wetland Law, Policy, and Politics" (New Book)

Wetlands expert Roy GardnerStetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy.  The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.

Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised.  I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.

Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States.  Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.

Gardner book cover

 

PRESS RELEASE     

Lawyers, Swamps, and Money

U.S. Wetland Law, Policy, and Politics

By Royal C. Gardner

Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.  

Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them.  Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

• the geographic scope and activities covered by the Clean Water Act

• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency

• the goal of no net loss of wetlands

• the role of entrepreneurial wetland mitigation banking

• the tension between wetland mitigation bankers and in-lieu fee mitigation programs

• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

- Blake Hudson

April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Thursday, March 10, 2011

Plater on Deepwater Horizon and TVA v. Hill

Environmental law, by definition, looks forward.  But it also pays to look back.

Today, one of the most experienced leaders in the field, Prof. Zyg Plater, will help us do both.  He will give two lectures at the University of Utah S.J. Quinney College of Law.

Plater1

The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster.  Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.

The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment.  As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today.  The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."

Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).

His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).

If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.

-Lincoln Davies

March 10, 2011 in Biodiversity, Cases, Current Affairs, Energy, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 9, 2009

Sustainable Fisheries Law

I teach Sustainable Natural Resources Law in the spring.  Here's a new publication brought to my attention by Gerd Winter that looks like a great fit for introducing students to the fisheries area.  A slightly edited summary of the book courtesy of Gerd appears below:

Towards Sustainable Fisheries Law

As most of the fish resources in the world's oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCN
Environmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources.

This publication is a result of an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarizes the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform.

Towards Sustainable Fisheries Law thus helps the reader to learn more about the international legal regime for fisheries management that is currently in place, improves the understanding of the institutional and legal problems related to fisheries management that countries face at the national level, and provides guidance for sustainable use of fish resources through a "legal clinic" for fisheries management.

The book was published as IUCN Environmental Policy and Law Paper No. 74. Free copies can be ordered at the IUCN office or downloaded (2,05 MB) from the IUCN website at: Toward Sustainable Fisheries Law

September 9, 2009 in Africa, Asia, Biodiversity, Books, Current Affairs, Economics, Energy, Governance/Management, International, Law, North America, Physical Science, Science, Social Science, South America, Sustainability, Water Quality, Water Resources | Permalink | TrackBack (0)

Thursday, September 3, 2009

World Council of Churches Statement on Eco-Justice and Ecological Debt

Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives.  Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt.  In a related, but fascinating, note, the WCC as part of its current  programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line.  This would provide practical spiritual guidance on when, in Christian terms, too much is too much.  Check it out!!!


WCC Statement on eco-justice and ecological debt

02.09.09

The World Council of Churches (WCC) Central Committee adopted a "Statement on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement proposes that Christians have a deep moral obligation to promote ecological justice by addressing our debts to peoples most affected by ecological destruction and to the earth itself. The statement addresses ecological debt and includes hard economic calculations as well as biblical, spiritual, cultural and social dimensions of indebtedness.

 The statement identifies the current unprecedented ecological crises as being created by humans, caused especially by the agro-industrial-economic complex and the culture of the North, characterized by the consumerist lifestyle and the view of development as commensurate with exploitation of the earth's so-called "natural resources". Churches are being called upon to oppose with their prophetic voices such labeling of the holy creation as mere "natural resources".

 The statement points out that it is a debt owed primarily by industrialized countries in the North to countries of the South on account of historical and current resource-plundering, environmental degradation and the dumping of greenhouse gases and toxic wastes.

In its call for action the statement urges WCC member churches to intervene with their governments to drastically reduce greenhouse gas emissions and to adopt a fair and binding deal at the UN climate conference in Copenhagen in December 2009, in order to bring the CO2 levels down to less than 350 parts per million (ppm).

 Additionally the statement calls upon the international community to ensure the transfer of financial resources to countries of the south to refrain from oil drilling in fragile environments. Further on, the statement demands the cancellation of the illegitimate financial debts of the southern countries, especially for the poorest nations as part of social and ecological compensation.

In a 31 August hearing on "ecological debt" during the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from the Quechua community of Peru shared some ways that the global South has been victimized by greed und unfair use of its resources. In the case of Peru, Sumire said mining has had particularly devastating effects, such as relocation, illness, polluted water,and decreasing biodiversity.

 The concept of ecological debt has been shaped to measure the real cost that policies of expansion and globalization have had on developing nations, a debt that some say industrialized nations should repay. Dr Joan Martinez Alier, a professor at the Universidad Autònoma de Barcelona in Spain, said climate change, unequal trade, "bio-piracy", exports of toxic waste and other factors have added to the imbalance, which he called "a kind of war against people around the world, a kind of aggression."

 Martinez went on saying: "I know these are strong words, but this is true." He beseeched those present, at the very least not to increase the existing ecological debt any further.

 The WCC president from Latin America, Rev. Dr Ofelia Ortega of Cuba, said ecological debt was a spiritual issue, not just a moral one. "The Bible is an ecological treatise" from beginning to end, Ortega said. She described care for creation as an "axis" that runs through the word of God. "Our pastoral work in our churches must be radically ecological," she said.

 Full text of the statement

 More on the 31 August hearing on ecological debt

 WCC countdown to climate justice

WCC programme work on poverty, wealth and ecology

More information on the 26 August - 2 September 2009 Central Committee meeting

 

September 3, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Religion, South America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2009

AAAS Policy Alert

For those of you who try to stay current on science policy, I am a member of AAAS and receive its policy alerts. I encourage all of you to join and subscribe to Science.  Here is today's policy alert:

AAAS Policy Alert -- April 29, 2009 


President Addresses National Academies

President Obama addressed the Annual Meeting of the National Academy of Sciences on April 27 and called for a renewed commitment to basic scientific research and education. During his speech he stated that his goal would be to increase our nation's share of federal investment in research and development (R&D) to 3 percent of gross domestic product (GDP). In recent years, the share has hovered around 2.6 percent of GDP. Furthermore, Obama announced the membership of the President's Council of Advisors for Science and Technology (PCAST). Members include past AAAS President Shirley Ann Jackson of RPI, as well as former Board member Rosina Bierbaum and current AAAS Treasurer David Shaw. They join former AAAS President John Holdren who is both the U.S. President's science advisor and co-chair of PCAST.

Budget News

The House and Senate have nominated the conferees to resolve the differences between their respective versions of the FY 2010 budget resolution. House members include: Budget Committee Chairman John Spratt (D-SC), Ranking Member Paul Ryan (R-WI), and Reps. Allen Boyd (D-FL), Rosa DeLauro (D-CT) and Jeb Hensarling (R-TX). Senate members include Budget Committee Chair Kent Conrad (D-ND), Ranking Member Judd Gregg (R-NH) and Sen. Patty Murray (D-WA). The conferees met today (April 27) to begin deliberating over a consensus document.

Other Congressional News

Congressional Climate Change Update. The House Energy and Commerce Committee held four days of hearings on the American Clean Energy and Security Act, with much debate on the merits of moving ahead on the climate and energy package. Subcommittee markup of the bill has been pushed back to next week, with details such as how to allocate permits to emit greenhouse gases and how the revenues will be used yet to be determined. Meanwhile Senate Environment and Public Works Chairwoman Barbara Boxer (D-CA) announced the formation of five working groups to find compromises in several areas of concern: regional issues, cost containment, targets and timetables, market oversight and coal research and technology. The Senate Foreign Relations Committee heard from Todd Stern, special envoy for climate change at the State Department, who testified on the diplomatic cost of inaction on climate change and emphasized the need for all countries - developed and developing - to engage in negotiations with "common but differentiated responsibilities." Stern is leading the first session of the Major Economies Forum on Energy and Climate on April 27-28, a White House initiative to develop a dialogue among major developed and developing economies on climate change.

New Bill Promotes Science Envoys. Last week, Senator Richard Lugar (R-IN) introduced legislation (S. 838) that recognizes the importance of international scientific cooperation and the work of organizations such as AAAS and the National Academies in this area. The legislation tasks the State Department to appoint Science Envoys to represent our nation and promote international collaboration.

Executive Branch

Presidential Memo on Scientific Integrity. OSTP issued a Presidential Memo on scientific integrity in the April 23 Federal Register and requests public comments on six principles for maintaining and protecting the responsible use of science in decision-making. The memo builds upon a March 9, 2009 memorandum from the President that called on OSTP to issue a set of recommendations within 120 days. OSTP has launched a blog on the subject and is seeking comments on the selection of scientists to serve in the executive branch, peer-review of science used in policy-making, access to scientific data used in policy-making, and whistleblower protection. Comments are due May 13, 2009.

NIH Stem Cell Guidelines Now Open for Comment. The NIH Guidelines for Human Stem Cell Research are now open for public comment until May 26.

NCI Director Speaks on Cancer Plan. National Cancer Institute Director John Niederhuber recently spoke of his institute's plans in the wake of President Obama's cited goal of doubling funds for cancer research. Included would be a boost in the NCI payline to fund more meritorious research grants, as well as more grants to first-time investigators and new faculty researchers. There will also be a focus on personalized cancer care.

EPA Examines Ocean Acidification. On April 14, EPA issued a Federal Register notice requesting information on ocean acidification, the changing of ocean chemistry from increases in carbon dioxide that affects coral reefs and other marine organisms. In response to a lawsuit by the Center for Biological Diversity, EPA is trying to determine whether changes are needed to the water quality criteria under the Clean Water Act. Comments are due June 15, 2009.

Toxics Reporting Tightened. As mandated in the 2009 omnibus appropriations bill, EPA finalized changes to reporting requirements under the Toxics Release Inventory that will take effect July 1. The final rules restore more stringent reporting requirements than those from a Bush-era rule that raised the pollution threshold for reporting. In 2006, AAAS submitted comments stating that the increased threshold would "threaten the ability of researchers to identify and understand potential threats to the environment and public health in a scientifically rigorous manner."

FDA Widens Access to "Morning-After" Pill. The Food and Drug Administration will now allow 17-year-olds to purchase the Plan B "morning-after" pill without a prescription, following a recent federal court order that it do so. The decision has been labeled a "triumph of science over politics" because of widespread concern that the previous administration overruled scientific advice on making the pill available over the counter, leading the FDA's top women's health official, Susan Wood, to resign in protest in 2005.

Nation's First CTO: Clarification. Last week's Policy Alert reported on the President's selection of Aneesh Chopra to be the nation's first chief technology officer. It has since been reported that the CTO will also be one of the associate directors of the Office of Science and Technology Policy (OSTP) concerned with overall technology policy and innovation strategies across federal departments. Chopra's position (which is subject to Senate confirmation) should not be confused with that of Vivek Kundra, recently named Chief Information Officer, who is located in the Office of Management and Budget (OMB), overseeing day-to-day information technology spending and interagency operations.

Elsewhere

Climate Risk Report Released. Led by the Heinz Center and CERES, a coalition of insurance, government, environmental, and investment organizations released a report, Resilient Coasts: A Blueprint for Action that listed steps the nation can take to drastically reduce rising coastal hazard risks and their associated economic impacts.

Texas School Board Chairman Up for Confirmation. Texas State Board of Education Chairman Don McLeroy, a vocal opponent of teaching evolution, is up for Senate confirmation by the state Senate, and during a recent hearing some members of the Senate Nominations Committee expressed dissatisfaction with McLeroy's performance. One state senator said McLeroy has "created a hornet's nest" and noted that 15 bills filed during this legislative session would strip powers from the state school board. Even if McLeroy is not confirmed as chairman, he will still remain a member of the board. In other news, the Institute for Creation Research is now suing in U.S. District Court over the Texas Higher Education Coordinating Board's decision to deny its request to offer a master's degree in science education.

Animal Rights Activists Charged. Two animal rights activists have been arraigned on charges of conspiracy, stalking and other crimes, including attempted fire-bombing, against UCLA scientists engaged in animal research.



Publisher: Alan I. Leshner
Editor: Joanne Carney
Contributors: Erin Heath, Earl Lane, Steve Nelson, Al Teich, Kasey White

NOTE: The AAAS Policy Alert is a newsletter provided to AAAS Members to inform them of developments in science and technology policy that may be of interest.  Information in the Policy Alert is gathered from published news reports, unpublished documents, and personal communications.  Although the information contained in this newsletter is regarded as reliable, it is provided only for the convenience and  private use of our members.  Comments and suggestions regarding the Policy Alert are welcome.  Please write to alert@aaas.org.



April 29, 2009 in Climate Change, Energy, Governance/Management, Legislation, Physical Science, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack (0)

Tuesday, April 28, 2009

Check out Peter Gleick's blog on water issues

Gleick Joins the Blogosphere

 

Read and discuss everything water with internationally renowned expert Peter Gleick, president of the Pacific Institute, on his new blog.

GleickFeatured on City Brights, San Francisco Chronicle's luminary blogger site, Gleick explores the water challenges facing California, the West, and our world. Follow along as he discusses the threats to our freshwater resources and viable solutions to those threats, drawing from not only his experiences and viewpoint, but also by way of numbers: each post will include an important, unusual, or newsworthy "water number" that will highlight some piece of the water issue.

Click to check it out or join the conversation:
http://www.sfgate.com/cgi-bin/blogs/gleick/index

April 28, 2009 in International, Physical Science, US, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)

Findlaw environmental case summaries February 2009

Table of Contents - February 23rd - 27th

ENVIRONMENTAL LAW CASES

• US v. Holden
• Sierra Club v. EPA
• Am. Farm Bureau Fed. v. EPA

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to FindLaw.com.

U.S. 6th Circuit Court of Appeals, February 24, 2009
US v. Holden, No. 07-5573, 07-5574
Defendants' conviction for impeding an EPA investigation was affirmed, where the District Court did not abuse its discretion by excluding evidence of a witness's drug use that did not clearly affect his ability to recall events. Read more...

U.S. 6th Circuit Court of Appeals, February 26, 2009
Sierra Club v. EPA, No. 07-4485
A petition for review of the EPA's decision not to object to a power plant's air-pollution permit is denied where the EPA may alter its position about a power plant's compliance with the Clean Air Act based on intervening events. Read more...

U.S. D.C. Circuit Court of Appeals, February 24, 2009
Am. Farm Bureau Fed. v. EPA, No. 06-1410
Petition for review of EPA air quality standards is granted in part and denied in part, where the EPA failed to adequately explain why its fine particulate matter standard was "requisite to protect the public health" under 42 U.S.C. section 7409(b)(1). Read more...

Table of Contents - February 9-13th

ENVIRONMENTAL LAW CASES

• Ohio Valley Env't Coalition v. Aracoma Coal Co.
• Friends of Milwaukee v. Milwaukee Metro. Sewerage Dist.
• Hill v. Gould

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to FindLaw.com.[Findlaw registration is free}

U.S. 4th Circuit Court of Appeals, February 13, 2009
Ohio Valley Env't Coalition v. Aracoma Coal Co., No. 071355
In challenge to the Army Corps of Engineers' issuance of permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations, grant of judgment in favor of plaintiffs is reversed and remanded where: 1) the Corps did not act arbitrarily or capriciously in determining the scope of its National Environmental Policy Act analysis; 2) findings regarding stream structure and function, mitigation, or cumulative impacts were not an "abuse of discretion" or "not in accordance with law," 5 U.S.C. section 706(2) (2000); 3) Combined Decision Documents issued with each permit included substantial analysis and explanation about the Corps' impact findings which were within the agency's special expertise and were based on Corps staff's best professional judgment; 4) compensatory mitigation plans contained in the CDDs for the challenged permits were sufficient both for purposes of satisfying the Corps' requirements under the Clean Water Act and ! for justifying issuance of a mitigated finding of no significant impact under NEPA; 5) Corps did not act arbitrarily or capriciously in conducting its required cumulative impact analysis; 6) stream segments, together with the sediment ponds to which they connect, are unitary "waste treatment systems," not "waters of the United States," and the Corps' did not exceed its section 404 authority in permitting them; 7) plaintiff's stream segments claim was not barred by principles of res judicata; and 8) Corps' interpretations of its authority was reasonable in light of the CWA and entitled to deference. Read more...

U.S. 7th Circuit Court of Appeals, February 13, 2009
Friends of Milwaukee v. Milwaukee Metro. Sewerage Dist., No. 081103
In a citizens' suit against defendant-sewer district under the Federal Water Pollution Control Act (Clean Water Act) alleging that certain sanity sewer overflows that occurred were violations of defendant's CWA permit and of the CWA itself, dismissal of plaintiffs' suit is affirmed over claims that: 1) the district court violated court mandate by not "considering and giving due weight to post-stipulation violations of the Act; 2) had the district court considered post-stipulation events it would have had no choice but to find that the 2002 Stipulation did not constitute diligent prosecution by Wisconsin Department of Natural Resources (WDNR); and 3) the district court erred by refusing to admit and consider the letter from the EPA to the WDNR. Read more...

U.S. D.C. Circuit Court of Appeals, February 13, 2009
Hill v. Gould, No. 07-5026
Denial of an application to recover appellant's attorney's fees and expenses under the Equal Access to Justice Act, brought after she won a lawsuit against the Secretary of the Interior, is affirmed where the Secretary's position at the merits stage was substantially justified. Read more..




April 28, 2009 in Air Quality, Cases, Energy, Environmental Assessment, Law, Mining, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Friday, April 17, 2009

Watershed Management

Cool new site: US EPA Watershed Central gives you one-stop shopping for anything related to watershed management: Watershed Central link

April 17, 2009 in Governance/Management, Science, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Call for Entries - 4th International Water Film Festival

If you're traveling this summer, you might want to film something about water and submit your masterpiece to the 4th International Water Film Festival.  Entries are due July 31st.  For more info, visit  Drink Water for Life blog - water film festival.


April 17, 2009 in Agriculture, Biodiversity, Current Affairs, Film, Governance/Management, International, Land Use, Sustainability, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Saturday, April 11, 2009

Elizabeth Royte's new blog -- more on bottled water than you'd ever want to know

Go visit Elizabeth Royte's new blog: Water. waste. and whatever   She's got more information on bottled water than anyone else in the world -- remember, she's the author of Bottlemania.

April 11, 2009 in Books, Current Affairs, Economics, Energy, Food and Drink, Sustainability, US, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)

Thursday, April 2, 2009

Water News from Water Advocates

New Congressional Legislation: Strong support for drinking water and
sanitation continues on Capitol Hill, where legislation introduced in
the Senate would put the U.S. in the lead among governments in
responding to the Millennium Development Goals for water and sanitation.
Companion legislation is expected soon in the House. Titled "The Senator
Paul Simon Water for the World Act of 2009" (S624), the bipartisan bill
introduced by Senators Durbin, Corker and Murray on March 17 seeks to
reach 100 million people with safe water and sanitation by 2015 and to
strengthen the capacity of USAID and the State Department to carry out
the landmark Senator Paul Simon Water for the Poor Act of 2005.

USAID: Dozens of USAID missions, notably in Sub-Saharan Africa and
Southeast Asia, are gearing up to utilize increased appropriations to
implement the Senator Paul Simon Water for the Poor Act, after years of
lacking the tools to help extend safe, sustainable water, sanitation and
hygiene. USAID this past month announced a number of initiatives
including: new strategic partnerships to extend water and sanitation
access to the urban poor in Africa and the Middle East (with
International Water Association), new multilateral revolving funds (in
the Philippines), new collaborations (with Rotary International) and a
new USAID Water Site http://tinyurl.com/newUSAIDwater.

Appropriations: Through the recently passed Omnibus legislation,
Congress appropriated $300 million for Fiscal Year 2009, for "water and
sanitation supply projects pursuant to the Senator Paul Simon Water for
the Poor Act of 2005." As with last year's appropriations, forty percent
of the funds are targeted for Sub-Saharan Africa. Priority will remain
on drinking water and sanitation in the countries of greatest need.
Report language suggests increased hiring of Mission staff with
expertise in water and sanitation. It also recommends that $20 million
of the appropriation be available to USAID's Global Development Alliance
to increase its partnerships for water and sanitation, particularly with
NGOs.

In Fiscal Year 2010, a broad spectrum of U.S. nonprofit organizations,
corporations and religious organizations are urging $500 million to
implement the Senator Paul Simon Water for the Poor Act, as part of an
overall increase of foreign development assistance, a level also called
for by InterAction and the "Transition to Green" Report.

For more water news, visit Drink Water for Life.


April 2, 2009 in Africa, Asia, Economics, EU, Governance/Management, International, Law, Legislation, North America, Physical Science, Science, South America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)