Posts Tagged ‘environmental law’

Hi all!


I think everyone was busy last week worrying the NSA is judging them for not calling their grandmother more often.  I know I was.  Which is why it took me a bit to get this post up, and also why so many fascinating things happened in the energy and climate world that I had to talk about them all in one post.

First of all, our least favorite pipeline that doesn’t even exist yet is back in the news.  The Sierra Club has quietly taken the debate over the Keystone XL pipeline over to the judicial branch.  The litigious environmental nonprofit (for those of you who don’t know, Sierra Club has acted as plaintiff for some of the nation’s most pivotal and groundbreaking environmental lawsuits – it’s one of their specialties as an organization) filed suit against the State Department last week regarding the sketchy-as-all-hell (from what I’ve read) environmental impact statement that the agency issued about the pipeline.  The impact statement – which suggests the pipeline will have no negative impacts – was prepared by a third-party contractor that has an active membership in the American Petroleum Institute, which Sierra Club and other environmental groups widely regard as evidence of a conflict of interest.  Perhaps more critically, the State Department did not respond to requests to produce documentation proving that the department screened for such a conflict of interest.  The lawsuit is seeking access to those documents and extension of the public comment period for the agency to finalize the determination so that the documents can be considered.  In the continued debate, Al Gore weighted in on the pipeline in a recent interview, stating that the project was ‘an atrocity.’  

Meanwhile, climate change is happening, you guys.  A five year study by FEMA that was just released has predicted a 45% increase in flooding in the United States during the coming decades – as a result of climate change.  (Except in North Carolina, of course, where flooding and climate change is illegal.  I suppose all the hurricanes will have to stick to Florida and South Carolina this year?) FEMA, which manages disaster relief, is expecting to have to insure 80% more properties, with a 90% increase in the average cost of a claim when filed.  But, this is all totally worth it, because it was definitely too expensive for us to regulate carbon through a cap-and-trade or tax system, and it was also definitely too expensive to make some of those fossil fuel companies maybe pay a little instead of collecting government subsidies.  What? Sarcasm is the lowest form of wit?

Fine. I’ll end on a good note.  Behold, Robert Redford for NRDC:


Still better looking than you.

Redford, an environmental activist and partner to National Resources Defense Council, has put together a series of short ads calling for action on climate change and clean energy initiatives.  You should watch them.  Because it’s Robert Redford.  And, he’s got something really important to say.  And then you should send them to everyone you know.

That’s all for now folks.  I’ll be back next week, and maybe I’ll be less cranky.


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This week the world lost an inspirational leader dedicated to environmental protection.  His name was Russell E. Train.  Train died at the age of 92 (see, protecting the environment can make you live longer).

The list of Train’s contributions to famous environmental laws is impressive.  Actually, the word impressive doesn’t do the list justice, more like mind-blowing.  Here’s a summary of his contributions:

  • First head of the Council on Environmental Quality (CEQ, the White House’s environmental policy shop)
  • Second EPA Administrator
  • Father of the National Environmental Policy Act (NEPA), the guiding federal legislation that dictates how new environmental projects should be developed
  • President of the World Wildlife Fund
  • Led the American delegation to the United Nations Conference on the Human Environment in Stockholm, the first large gathering of world leaders to consider environmental degradation

Train was a Republican lawyer by training, yes a Republican, you heard right.  Motivated by epic rates of pollution in the 70s and a conservationist at heart Train sought to protect the environment and promote economic growth (my favorite combination).  Train consulted President Nixon on environmental laws and advocated that the protection of the environment can be a bipartisan national interest.

Under his lead at EPA, the agency:

banned four particularly toxic farm chemicals (aldrin, dieldrin, heptachlor and chlordane) and instituted auto emission limits. He recruited economists to forecast the costs of environmental rules. And he established the agency’s scientific capacity to evaluate the health consequences of exposure to toxic compounds, the basis of the EPA’s process for assessing the risks and benefits of its actions.

Train was raised in the Washington area, and his father worked at the White House.  He was quoted as a “man of exquisite manners” and resided by his wife of 58 years, and 12 grandchildren.

Sounds like the perfect life to me.  Salute to you, Mr. Russell E. Train, and thank you for your dedication to the environment. Cheers.

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Yesterday, I attend Vanderbilt Law School and the Environmental Law Institute’s Annual Environmental Law and Policy Review Conference (ELPAR).  The conference focused on three topic areas and while all were interesting in their own right, one raised a very valid question that I now would like to raise to you in the hope that you will supply your own thoughts.

Professor Jonathan Adler of Case Western University’s School of Law (not Jonathan Alter for you political junkies and not that Jonathan Adler for you fasionistas) in a forthcoming paper will argue that one of the best ways for the federal government to find solutions to our energy needs and climate change is not through the traditional federal grant process, but rather by creating prize competitions.  He makes a fascinating case for this line of reasoning.

Oooh. Ahhh. I want shiny.

The overarching argument is that prize competitions produce proven winners.  This may sound like a strong bashing of grants, but it’s not meant that way.  The grant process has produced plenty of innovative ideas—Google being just one of those many ideas (no, I’m not lying.  Larry Page was awarded an NSF Graduate Student Research Fellowship that brought forth the birth of Google.)  This said, the grant process begins with a call for proposals to ideas to the table for consideration.  The most promising submissions, after undergoing some intense scrutiny, receive grant money to carry out research that may or may not produce the intend result.  That is the point, friends.  We provide money in the hope that the proposal yields the desired outcome.  Yet, at the end of the day, the idea is untested.  Boiled down: the wonderful, glorious idea may fail.

It pains me to bring this point up, and while it’s not entirely relevant as it was a loan, a point was raised about Solyndra, the infamous solar company that went bust after receiving a DOE loan guarantee.  Had Solyndra instead competed as part of a larger pool for a prize, perhaps this prickly pear could have been pinned on our bad economy and not the government.  Again, not a perfect parallel because loans are subject to a different set of scrutiny, but it’s still food for thought.


Even Dan's been known to be a prickly pear from time to time.

On this note, for those of you skeptical that government has your best intentions in mind/suspect that grants are a form of cronyism, prize structures can assuage some of your concerns by, again, awarding money to the idea that works the best in reality and not on paper.  This bypasses favoritism and friendship between grant seeker and grant awarder.

Prizes can also induce involvement from the private sector.  This example is readily apparent in looking somewhat outside the climate box to our nation’s space agency, NASA.  In this time of fiscal restraint, NASA has increasingly involved commercial companies in their projects and design competitions.  Evidence abounds in just the press release section of their website.  As for the world of energy and climate, since carbon does currently have a price sticker associated with it, privates have no real reason—other than good moral ethics and common sense, so perhaps economical is a better word than real—to fund solutions to carbon emissions.

Another point is that prizes resemble an incentive process that has produce many of our best ideas through the protection it provides.  This process is none other than our patent system.  The first to file structure (a new change from the first to invent structure thanks to the America Invents Act passed by Congress and signed into law last year) rewards those who provide a good idea and also prove that it works.

Timothy Brennan, a professor at the University of Maryland, Baltimore County (UMBC) and frequent contributor to Resources for the Future (RFF), in his comments on Adler’s paper provided additional strength to Adler’s argument. A prize structure, he argued, allows for a more flexible contest design where not just the winners are rewarded, but perhaps the second and third place designs also win a prize.  Whatever the winning project may be, it has to meet a specified set of criteria.  And then of course, unlike the patent system, the prize idea can become property of the U.S. government where it can be sold at a marginal cost instead of the maximum cost (as would likely be the case if it remained in a private individual or company’s hands, unless they weren’t seeking to maximize profits).

While not necessarily countering his assertions, Brennan did point out the fact that those looking to prizes as a way to avoid centralized bureaucracy would be sorely mistaken to do so.  The desired criteria and winners are decided still decided by the government.  He also affirmed that the peer-review process is strong, and so his commentary wasn’t necessarily a knock on that process.  Furthermore, none of this is to say prizes are the solution to finding solutions.  There is also the thorn in every project’s design, regardless of how it’s brought about: bringing the project to commercial scale.  But, perhaps that could be made a criteria point for determining a winner.

As someone who recognizes the fiscal predicament enrapturing our country and many other governments the world over, I feel the need to conclude this list of arguments by noting the benefits of a prize structure in times of fiscal restraint.  As I’ve said already, the winners are the ones that get funded.  Sp we reduce payouts to projects that can’t quite make it across the finish line.  If you’re feeling sorry for the losers, Tom Petty has some lyrics for ya.

So how does this apply to the fine world of nutritious and delicious greens?  The whole point was that in the world of energy and climate change, we have a very specific goal in mind with certain criteria that need to be met (keeping temperature rise to 2 degrees Celsius, minimizing seal level rise, reaching 100 miles per gallon of gas, you list name it).  Instead of awarding grants, why not try to harness America’s competitive nature and create a prize competition?  Of course, the competition has to be reasonable; sadly, no one is going to make greenhouse gases disappear tomorrow.  But, we could try to create (or revive) competitions to create solar-powered car designs, longer lasting batteries, or even more ambitious things like effective nuclear waste storage cases and better waste pool liners.  Think of the possibilities….

You'd certainly be one of a kind in this ride.

On that note, be sure to share in the comment section.

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So, amid the flapping currently surrounding the Supreme Court about health care legislation, it might seem impossible that the high court could have been worrying about anything else this month….or even practically this year.  Or really, ever, since people seem to be getting pretty upset over health care.  However, there has been a lot going on in the judicial world, and some of it should catch the attention of enviro folks. I’m going to do my best to put on a legal hat and discuss this, although those of you who might be reading that have actual formal education in the law (hi, Carol!!! how’s law school?), feel free to weigh in!


OK, so it's not exactly a hat. But if we were in Britain, I'd totally go to law school just for the sweet wig.

Meanwhile, back in the US, the people in this big building here:


Ever wonder what their heating bill looks like?

…they handed down a decision that was reported in POLITICO last week regarding whether or not the process of judicial review can be applied to rule-makings by an agency – specifically, the EPA.

The case went something like this: an Idaho couple were told by EPA to reverse grading on their land after a determination by the agency that their property included wetland area protected by the Clean Water Act.  The work they performed was done without the necessary permit that should have been obtained.  As it stood, the couple had to means to challenge the EPA determination except to simply refuse to pay fines – which accrued daily with each additional refusal to pay and added up to millions.

The new determination by the court did not decide this particular case, but it did provide a potential out for this couple and anyone who might face a similar situation in the future.  The Supreme Court ruled that determinations made by the agency are subject to judicial review, the process by which a court can strike down a decision made by the executive (or legislative) branch of the federal government if a judge finds that the decision is arbitrary, unconstitutional, or outside the jurisdiction of the law.

For those of you unfamiliar with the law (probably most everyone reading this), wetlands are protected under Section 404 of the Clean Water Act.  EPA and the Army Corps of Engineers have wide berth when it comes to regulating the discharge of waste material as well as dredge-and-fill operations having to do with wetlands.  What is most debated, though, is the fact that the bodies of water (whether river, lake, stream, creek, wetland, whatever) protected by the Clean Water Act must be “waters of the United States.”  Based on this, conservatives tend to argue that EPA has no business regulating small bodies of water, water bodies that cut through private land, farmland, etc, and that the reach of “big government” and “regulations” into people’s lives should be limited.  Hence the objection raised by the Idaho couple: if it’s private land, what business does EPA have determining that it’s a wetland? And what can I do if I disagree?


To wetland or not to wetland, that is the question.

What business indeed?

The problem with this – and virtually all jurisdictional limits that are placed on regulations – is that media-based pollutants tend to be somewhat of a nuisance when it comes to their willingness to respect municipal and regulatory boundaries.  It might be your stream, on your land, which is private property, and within your right to stand around pouring paint thinner into it all day long.  But what happens when your stream connects to a larger body of water, say, the Potomac River?  Are you just polluting your own water?  Or are you polluting water that is, through the interconnectedness of the watershed, water of the United States?  Is all water considered water of the United States?  Or is it just not your fault if you pollute, and it goes down river, becuase, well that’s somebody else’s problem – this is America, and we have rights and freedom?


Or maybe you just never really liked wetlands much anyway.

I’m not trying to be one-sided here, but we’ve got a fundamental impasse.  On one hand, the law clearly isn’t written to extend to private property.  On the other hand, we can’t protect our main bodies of water if there are smaller problems on all the bodies of water feeding them, compounding the issue.  That’s bailing water out of the leaky boat without plugging the hole.

And stepping back a bit further: whose determination is it, anyway?  In this specific case – which allows for judicial review of EPA’s determination of what is a ‘wetland’ – who should be the one making the decision?  Which is the fundamental difficulty with most environmental regulation: there are always two ways of looking at the problem.  One is the science, and the other is the policy.


A team of cutting-edge wetlands scientists from the U.K.


To take the first angle, clearly a judge – an expert in the law of the United States – is most equipped to determine whether or not EPA is keeping with the spirit of the legislation.  On the other hand, that judge has no training in what precisely a ‘wetland’ is, nor are they educated enough in critical topics such as ecology and hydrology to know how that particular tract of land fits into overall efforts to protect and ensure water quality.


Don't worry - he's just a lab tech.

Agency scientists, whose entire careers are based on making these decisions, would obviously have the training, expertise and knowledge to make the most educated scientific decision. Is it then simply the job of lawyers arguing one side or the other to call the most qualified witnesses?  Is it the job of the agency to give the judge a crash-course in water quality and wetland science? And even if the science says that the land is worth protecting, is that a good policy?  Where does the science end and the policy begin?




Which leads us to a larger question – maybe even a moral question: Whose interests are we most concerned with protecting, anyway?  Do we err on the side of protecting the rights of the individual to alter, modify, dispose of, or destroy their property as they see fit? If I purchase a priceless artifact – say, a work of art that cannot be replicated or reproduced – is it then within my rights to burn it?  Or is there a moral obligation here to structure laws and regulations in a way that protects and ensures the good of the general public?  If my modifications will cause harm to others and detriment to the overall water quality of an area – arguably ‘harming’ others – is that still within my right?

These are big questions my friends, and ones which I suspect we will be pondering for years to come.

Or at least until this guy comes up with an answer.


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