On the Environment
Environmental Law & Governance
Friday, July 19, 2013
By Josh Galperin, Associate Director
In a post last week I mentioned that I had made two particular predictions this past year. I was happily correct in one of my predictions, and I posted on that last week. I also promised to discuss my wrong prediction this week. I thought about breaking that promise because I don’t like being wrong, but the subject matter is too interesting to ignore.
At the end of January I blogged about an environmental case in the United States Supreme Court. The case, Koontz v. St. Johns River Water Management District involved (I thought) some very nuanced aspects of the U.S. Constitution’s Takings Clause. I discussed all the details in the earlier post, so I’ll give only a very brief recap here: Mr. Koontz wanted to develop some wetlands into commercial shopping. Local environmental officials asked Koontz to pay for restoration at wetlands several miles away or to reduce the size of his planned development. Koontz refused these conditions and the officials denied his permit.
Koontz’s lawsuit claimed that the state had effectively taken his property without compensation, in violation of the Fifth Amendment of the Constitution. As my previous post explained, this argument is typically used when the government either physically appropriates private property—as in the example of Harvey and Phyllis Karan’s strip of beach in New Jersey—or regulates property so heavily that it is effectively unusable for private purposes—for example, when regulation prohibits all construction on the property. One thing that makes Koontz an interesting case is that the government never took Koontz’s property; they merely denied him a development permit.
I wrote above that “I thought” this was a case about the Takings Clause. In my previous post I argued that if the government had approved a permit for Koontz, and that permit required him to mitigate wetlands, then, perhaps, they would have effectively taken his property and would have to pay or change the permit. However, because the government denied the permit, no property ever changed hands. Therefore there could not be a taking, and Koontz would lose the case.
That’s where I was wrong.
As it turns out, the Court didn’t quite look at this case as one about taking property. Rather, they looked to the legal doctrine of unconstitutional conditions. The Court ruled in Koontz’s favor because they looked at the government’s proposed condition (Koontz only gets a permit on the condition that he pays to mitigate wetlands) and said that it would have been a taking if it had happened.
When the government says to a citizen “You cannot get benefit B unless you give up constitutional right C”, then there has been an unconstitutional condition. For instance, it would be unconstitutional for a state to tell a citizen that he cannot get his Medicare benefits unless he stops protesting the war. Protest is a constitutionally guaranteed right and the government cannot withhold a benefit on the condition that a citizen gives up that right. To my own surprise I foreshadowed this argument in my earlier post when I said Mr. Koontz might argue that he is effectively being forced to accept an unconstitutional permit if he wants a resolution, because if he doesn’t accept the permit then no property changes hands and he has no basis on which to sue.
Even though I thought of this argument, I reached a different conclusion from the Court. I reasoned that the right Koontz was being asked to give up—the right to keep his property—was not a constitutional right. The Constitution clearly permits the government to take private property. Where I fell short was in ignoring the requirement of just compensation. If the government did, in fact, demand property from Koontz, they demanded it without offering just compensation. In other words, (at least in theory, and I’ll come back to this) the government conditioned Koontz’s permit on his willingness to give up property without just compensation. It is unconstitutional to take property without compensation and a condition demanding property without compensation is therefore an unconstitutional condition. On this point the Court was exactly right and I was exactly wrong.
There are two important notes here. First, it is important to realize that under this logic, the case really is not about takings law. Because the government never issued Koontz a permit, no property ever changed hands, nothing was taken. Koontz refused to accede to the unconstitutional condition. Since nothing ever changed hands, Koontz is not entitled to the constitutional remedy of just compensation. Nothing was taken so there is nothing for which to compensate him. If he gets any payment for his troubles it will not be payment demanded by the Constitution, but some payment that might be required by Florida law.
The second note brings us back to the underlying condition. The Court reasoned that the condition was unconstitutional if it required transfer of property without compensation. So there was one last issue that the Supreme Court had to decide: Could there be a taking where the demanded property was money rather than physical or intellectual property? In other words: Could a requirement to pay, rather than a requirement to give up land, amount to a taking?
The Court found that transfer of money could amount to a taking. The Takings Clause is traditionally focused on physical or intellectual property, so expanding to general cash transfers is a dramatic shift, and to me, this shift seems to lead to absurd results. Suppose the government demands that Koontz remediate a wetland for the cost of $5,000 and that is deemed a taking. It therefore requires just compensation. It isn’t hard to calculate a fair compensation for taking $5,000. Unless there has been a dramatic economic shift, the fair value of $5,000 is $5,000. The government then gives Koontz his money back. Now there has essentially been no taking to begin with. Other than some transaction costs, everybody is back to exactly where they started. Put differently, it is as if there had never been a taking in the first place. Nothing of consequence has happened.
This is absurd because the Constitution very explicitly allows the government to take property. This is exactly the point of the Takings Clause. The government can take property so long as the property is taken for a public use and the government pays just compensation. But if the Court views money as property for these purpose, then the government has effectively lost its constitutional ability to take this type of property even when necessary for a public use. Imagine if the Court ruled that government could take land to build a school, but only as long as the government returned the land as soon as they took it! In effect the government cannot take the property at all. This is a farcical reading of the Constitution but is an exact parallel to what the Court is setting up when cash can be the basis of a taking. The ruling also suggests that government may never be able to charge fees or levy taxes without immediately refunding them. The Court noted this fear and assured that the Koontz ruling does not infringe on taxes, but the Court gave no guidance on a distinction between charges that require refunds and those that do not.
That seems absurd to me, and unconstitutional, but I’ve been wrong before.
Thursday, July 11, 2013
By Guest Author, Josh Galperin, YCELP Associate Director
The problem with making predictions is that sometimes predictions are wrong. Over the past several months I made two predictions on this blog about two important environmental law cases. I ended up one-for-two.
That isn’t such a bad performance, but the consequences of being wrong are significant -- not just for my ego, but for the on-the-ground reality of environmental planning. Of course the consequences of being right are also important. This post addresses the good news. Stay tuned next week for the bad news.
In December I wrote about climate adaptation efforts in New Jersey. The town of Harvey Cedars, the State of New Jersey, and the federal government were cooperatively working to strengthen a dune system in order to protect against devastating storm surges like those associated with Hurricane Sandy. But bigger and better dunes can mean diminished views for some homeowners. Harvey and Phyllis Karan lost some of their view and a court initially awarded them $375,000 for the loss. Shortly afterward, Sandy came along and, because of the new dunes, didn’t destroy their home. So Mr. and Mrs. Karan had hundreds of thousands of dollars and an intact home thanks to the dune project.
I argued that this was an unreasonable result and if the law continues to require this sort of double-benefit whenever private property is hampered by climate adaptation projects, climate adaptation would become financially infeasible.
Luckily for the future of New Jersey’s beaches, the New Jersey Supreme Court ruled on Monday, July 8, that the lower court was wrong when it awarded $375,000 to the Karans. The lower court did not allow the jury to consider the fact that the dune project would give the Karans a significant benefit (saving their home!), and it should have. According to the New Jersey Supreme Court, the jury should consider the fair market value of the property before the governmental interference and compare that to the fair market value after the interference, including any potential increases resulting from the project.
This case now returns to the lower court where a new jury will consider how the home-saving benefits of dune replenishment will affect the value of the Karans’ home. Hurricane Sandy likely had some impact on the court’s decision in this case, even if only subconsciously. It is also likely that the memory of Sandy will influence the next jury to determine how much money the Karans should receive.
Sandy may or may not have a connection to climate change, but the storm is at least a demonstration of what climate change looks like. In my earlier post I suggested that the reality of climate change may drive changes to the strictures of property law, and this week’s decision from the New Jersey Supreme Court suggests this could be exactly what is happening.
Wednesday, July 10, 2013
By Guest Author, Marissa Knodel, Yale F&ES '14
The next time I am asked whether I can be an advocate for people and places with the least information, access to, and ability to obtain a just, healthy, and resilient future, and have a career, I can confidently answer “yes!”
After my first day at Environmental Law Alliance Worldwide (ELAW) in Eugene, Oregon, I knew I found the type of dynamic, engaging, hard working, and innovative legal community for which I want to be part of for the long-term. As a dual J.D./M.E.M. candidate, I accelerated through law school and missed valuable opportunities to apply my learning to a “real-world” situation. Such omissions proved frustrating for my legal education because law is a skill-based discipline that requires an application, otherwise one is left with a bag of tools, raw material, and no directions.
Thus, adrift in my sea of legal reasoning and academic conceptions about environmental justice and community empowerment, I sought mentorship from lawyers working in the interconnected fields of environmental and public interest law. I was fortunate to discover ELAW, which was founded in 1989 at the University of Oregon Law School by a group of lawyers from ten countries who discovered they could promote environmental protection for their communities more effectively by sharing strategies and legal and scientific information. This cross-border collaboration has since expanded to include more than 300 public interest advocates from seventy countries. ELAW remains a nonprofit public interest and environmental law organization that “helps communities speak out for clean air, clean water, and a healthy planet” and promotes “grassroots efforts to build a sustainable, just future.”
I cannot disclose specifics, but my day-to-day assignments go something like this:
An advocate (lawyer) in ____ country is thinking about bringing a claim against ____ project or company on behalf of ____ community in defense of their human, environmental, and/or constitutional rights to a safe, healthy, and sustainable environment for present and future generations. Can you provide information about relevant laws, precedent cases, and advice about the viability of such a claim?
Then off I go onto the Internet and law library to research and write a memo in response, usually in collaboration with other ELAW law and science experts. For example, I’ve researched international financing of gold, copper and silver operations that are impacting a local community, investigated whether noxious odors constitute a violation of the right to a healthy environment, and summarized, for comparison, U.S. laws and regulations pertaining to wetland development and phosphate mining. I also help update and expand an online database of countries’ environmental impact assessment (EIA) legislation. Exploring how different countries articulate and enforce environmental laws, especially with regard to EIAs, is fascinating, and says a lot about the nation’s governance and rule of law, political and colonial history, economic development, and other socio-economic and socio-cultural issues. Environmental changes exacerbate existing social, political, and economic stressors, so there is a strong emphasis on the intersection between human and environmental rights.
Though difficult, I am learning that the “answer” to a particular request is often negative or unclear. In addition, I may or may not find out whether a particular memo made a beneficial difference in a case or not. The important part of my work, however, is not always about winning or personal recognition, but about aid through empowerment. ELAW’s philosophy and purpose is to provide legal and scientific assistance at the request of communities, with the goal of strengthening the rule of law and access to justice at the local level. The personal relationships established with the lawyers who represent these communities helps elucidate the elements that comprise environmental justice: recognition, participation, enforcement, and empowerment.
Non-profit work is not always romantic and certainly has its challenges. A great deal of time must be spent fundraising and writing grant applications. ELAW’s physical office space and amenities are limited, but the location is beautiful, and my co-workers are personable, friendly, and generous. Largely dependent upon volunteers and unpaid interns, the ELAW community is more value- than profit-driven. Non-profit legal work, in sum, is simultaneously rewarding and humbling in the most satisfactory way. ELAW has already taught me that to be a more effective environmental and public interest lawyer, one must first identify as an environmental and community advocate.
I find it difficult to believe that a month has already passed since my move to the west coast. At the same time, if my knowledge and list of amazing experiences continue at their current rate, I am looking forward to my remaining six weeks with enthusiasm and determination to take advantage of every exponential opportunity.
Marissa Knodel grew up in Rochester, Minnesota, and has been fortunate to live and study in a variety of other locations, including Alaska, Belize, South Africa, and France. She earned her B.A. in Environmental Studies and International Public Policy from Dartmouth College in 2009. After graduation, she worked as the Sustainability Programs Specialist at Dartmouth College and indulged her passion for food and wine with a summer internship at Jewell Towne Vineyards in South Hampton, New Hampshire. She enrolled in the dual degree program with Vermont Law School and the Yale School of Forestry and Environmental Studies in 2010 to explore her interest in the definition and intersection of justice and sustainable development in the climate change context.
Monday, July 08, 2013
By Guest Author, Breanna Lujan, Yale College '14
Confined to less than 2 percent of their original habitat and threatened by the effects of development, population growth, and climate change, grizzly bears are facing a dismal future. Despite this, the grizzly, as much a biological wonder as a national symbol, is facing possible delisting from the Endangered Species Act.
As an intern for People and Carnivores, a project of the Northern Rockies Conservation Cooperative that aims to mitigate human-carnivore conflicts, I am investigating the complexities surrounding the status of the grizzly bear in the Great Yellowstone Ecosystem. The primary question: do we delist the grizzly bear or maintain its federal protection under the Endangered Species Act?
I am but one of a multitude of people grappling with this question. Ranchers, county commissioners, NGO members, outfitters, journalists, scientists and various other individuals all have a stake in the grizzly bear’s status. Through my work, I have been fortunate to gain insight into this complex web of interactions by interviewing some of the key players. The questions I ask focus on how people view the challenges facing grizzly bears, the threats to grizzly bears and their habitat, the effects of various groups on grizzly bear management, states’ ability to successfully spearhead grizzly bear management, and the role of science – among other topics.
The responses to these questions have been very telling of how these participants’ values, perspectives, worldviews and narratives shape their positions. By sorting through the points of convergence and divergence, I hope to gain a better understanding of these views and values to both inform and improve the development of future conservation strategies.
The most interesting aspect of my work so far has been identifying if and how certain viewpoints align. This debate—like so many others involving conflicting interests—has been depicted as black and white, pitting ranchers and hunters against conservationists and environmentalists. Though some individuals believe this issue is overtly polarized, I have found that people from these “opposing” camps have a lot more in common with each other than they realize. For example, ranchers and conservationists—portrayed as having incompatible goals and visions—both have an appreciation for the land and hope to conserve its resources in a sustainable manner.
So the disagreement between these groups results not from differences in their ideologies of conservation, but rather from how to uphold those ideals, or in this case, how to best manage the land. Given the underlying commonalities, it seems collaboration between these groups would be simple. What I have come to realize, however, is that differences in personalities and agendas foreclose almost any possibility of collaboration.
And, unfortunately, it becomes very easy to forget the outcome of this debate will ultimately affect the grizzly bears. Instead, they become lost in this mire of politics and opinions, no longer viewed as living organisms but rather as vehicles to propel individual agendas.
I have another month with People and Carnivores, and I am excited to dig further into this issue. I hope that by gaining a better understanding of the underlying social and political complexities, I will not only be able to contribute to the wellbeing of the grizzly bear, but also facilitate much needed dialogue among the individuals entrusted with the safekeeping of the species.
Breanna Lujan is a rising fourth year Environmental Studies major at Yale College. She is concentrating on biodiversity conservation and sustainable development, especially as these topics pertain to environmental policies in Brazil.
Wednesday, June 26, 2013
By Josh Galperin, Associate Director
I want to make a few points about the climate plan President Obama spoke about yesterday. It’s the kitchen sink of climate policy, so there is a lot to say – but I’ll keep it brief.
Overall, this is a step in the right direction simply because the President stood up and gave a speech completely dedicated to addressing climate change. Climate was absent from the campaign trail and has only received piecemeal attention from the White House otherwise. While I have some concerns about the details of the plan, its mere existence is a starting point for a dialouge. Unfortunately, it is a dialouge that should be much further along.
The President’s plan presents what he himself calls an “all of the above energy policy.” That’s a reassuring phrase. My concern is that one of the above—namely coal—is one of the top drivers of climate pollution. I am not suggesting that a better climate policy would require the immediate retirement of all the country’s coal plants; that is patently irresponsible. But a better climate policy would at least recognize that coal is part of the problem, not part of the solution.
Specifically, the White House plan proposes to support “clean coal” through loan guarantees for technologies such as carbon capture and sequestration (CCS) and “advanced fossil energy projects,” which presumably includes technologies like coal gasification. The words “clean coal” peppered through this plan is worrisome. There is “cleaner” coal, which emits less carbon, less sulfur, or has other pollutant reductions, but no coal is clean in the sense that wind, solar, or energy efficiency is clean. Coal gasification can reduce pollutants and CCS can reduce carbon emissions to the atmosphere, but only if utilities can bring the technology to scale. But new technologies do not address the upstream impacts of coal, from mining to transportation, or the downstream waste storage problems.
Moreover, CCS may not ever be the technology that this plan envisions. When attached to a coal plant, CCS technology requires electricity to operate. That electricity comes directly from the coal plant to which it is attached, which means that CCS will reduce the amount of electricity that leaves the coal plant and goes to homes and businesses. Some estimate that CCS technology could require 40 percent of a coal plant’s electrical output. This means that a coal plant would need to increase its output by 40 percent to make up for the electricity that goes to the CCS process, thereby burning over 40 percent more coal.
The loan guarantee plan is a sort of fossil fuel subsidy, albeit a subsidy that will help reduce the cost of private borrowing for “advanced fossil energy projects” rather than offer direct payments to the industry. In fact, elsewhere in his plan the President promises to reduce direct subsidies. Coal is king because it is cheap, and it is cheap, in part, because it has had help from the government. Reducing subsidies will help alternative energy sources compete.
One of the most valuable subsidies that coal power receives is permission to emit greenhouse gases, creating a significant social cost but bearing almost none of that cost internally. The new climate plan promises to remove this subsidy as well and that is an important highlight: President Obama promises to direct the Environmental Protection Agency to adopt carbon standards for new and existing power plants. The process is underway (albeit delayed) for new-plant standards but previous EPA statements indicated that the Agency would not address existing plants. Perhaps yesterday’s announcement will change that.
Everything I’ve so far discussed is aimed at reducing climate change. These issues, and many others, have been at the center of the climate change debate, in one form or another, since the beginning. Adaptation, however, has been mostly absent. Yet adaptation is critical. The climate ball is rolling and mitigation seeks to slow it. Adaptation helps us avoid getting flattened by it. Adaptation helps sure-up infrastructure and make society more resilient to change. Local governments have been working tirelessly to adapt and organizations such as Mayor Bloomberg’s C40 Cities Climate Leadership Group have been supporting urban resilience efforts. But adaptation has not been a major part of the national dialouge.
With respect to mitigation, the President’s plan largely works at the margin. But with respect to adaptation, whether it is strengthening coastlines or protecting hospitals from floods, the President has finally raised its policy profile and that will likely be the biggest achievement of this plan.
Wednesday, June 12, 2013
By Guest Author, Omar Malik, Yale F&ES '13
I was just in Bonn for the mid-year meeting of the advisory bodies of the United Nations Framework Convention on Climate Change (UNFCCC). The purpose of these meetings is to work out the details of the agreements that came out of last year’s Conference of the Parties (COP), and to prepare for the next COP in Warsaw in November. The three groups meeting are the Subsidiary Body for Implementation (SBI), the Subsidiary Body on Scientific and Technical Advice (SBSTA), and the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP). Ultimately, the goal of these talks is to help transition from the Kyoto Protocol to a new international agreement on climate change that is supposed to be signed in 2015.
For those who follow climate change talks, many familiar themes emerged from this conference. For instance, the talks were an especially iterative process: meetings are started in a large plenary hall and then move to more focused and smaller contact groups. After that, they move to closed-door meetings, and then—where some argue the real substance of negotiations happens—the delegates go into bilateral discussions before returning to plenary meetings. It’s a cycle of refinement. Another major theme was the UNFCCC process itself. A point of debate that came up at one of last week’s meetings, for instance, was an accusation that Secretariat was speeding the talks along too quickly and perhaps single-handedly steering the process. This is an issue because sovereignty and consensus are both major parts of the negotiations. So while it is in the Secretariat’s interest to move things forward, there’s a catch-22 insofar as the UNFCCC Secretariat can lose credibility by trying too hard to get things done.
This brings up a question: Is progress measured by the process or the product?
To this end, indices are used to gauge various forms of progress in climate change policymaking. One slightly tongue-in-cheek example, above, is contained in the infographic shared by the Climate Action Network (CAN) at the Bonn conference, which shows the correlation between daylight in the conference’s host city and the “level of productivity” achieved. While leaving the future open to success, it implies that the negotiators who attend the conferences are simply subject to the rhythm of the solar-system.
Another—more serious--assessment by CAN along with Germanwatch, a climate change institute, is the Climate Change Performance Index (CCPI). The CCPI rates countries on their relative performance on a number of climate change indicators, including sector-specific carbon dioxide emissions levels, energy efficiency, renewables, and national as well as international policies. It’s interesting to note that part of the international policy score comes from surveys done at international conferences such as the SB 38 of the UNFCCC.
On a final note, please check out the accompanying photos of the conference below. During the conference eastern and southern Germany experienced major flooding. This is a reminder that the true measure of climate progress is preventing dangerous on-the-ground impacts, as extreme weather events are one of the underlying drivers for stopping climate change in the first place.
Tuesday, June 04, 2013
By Guest Author, Kathryn Wright, MEM '13 and Lauren Sanchez, MEM '14 and 2013 YCELP Moran Environmental Fellow
In mid-March, the Ahmedabad Municipal Corporation (AMC) in Ahmedabad, Gujarat launched the first comprehensive heat action plan in South Asia in collaboration with the Natural Resource Defense Council (NRDC) and its partners. Now that the heat season is just around the corner for Gujarat,
the AMC will have the opportunity to put the heat action plan in motion. The heat action plan is composed of an early warning system and public awareness campaign about staying healthy during extreme temperatures and may be accessed online on the AMC’s website.
Climate scientists predict that extreme heat waves will increase in frequency due to climate change. A key component of NRDC's example materials and advertisements is to try and establish the link between extreme temperatures, health and climate change. NRDC, in partnership with the Indian Institute of Public Health
(IIPH), Public Health Foundation of India (PHFI), Mount Sinai School of Medicine, Rollins School of Public Health at Emory University, and Georgia Institute of Technology, was able to develop public service announcements, recommendations and protocols for heat waves and extreme heat events.
Advertisements and print-distribution are already picking up around the city. Billboards, as pictured below, are being put up around the city providing heat prevention tips. In the coming months, key stakeholders will continue to meet, discuss and revise the early warning system.
(Photo courtesy of Anjali Jaiswal, Director of the NRDC India Initiative)
This billboard and other heat action plan advertisements are directed at several unique groups, vulnerable to the effect of increased heat:
Young and elderly populations – development stages contribute to increased vulnerability due to challenges maintaining homeostasis. These populations are at-risk because of lack of control of their surrounding environments
Slum communities - typically lack access to cooling facilities, healthcare and other amenities to help combat the heat
Outdoor workers - physical exertion under the hot sun contributes to dehydration and susceptibility to other extreme heat illnesses
The heat action plan will be primarily disseminated throughout the city of Ahmedabad through public ads in a variety of media. The advertisements and publications were further tailored to address these unique groups. A separate easy-read version of the heat action plan was developed to reach a broader audience. There are also plans to place public service announcements on ambulances. Another exciting development is that the AMC printed health tip sheets for 6,000 school children to take home to their families!
In addition to the advertisements around the city, NRDC and its partners are also providing health fact sheets for medical workers and community outreach groups around the city. Through these dissemination strategies, Ahmedabad residents will be able to properly prepare for heat season, and will begin to think about the impacts associated with climate change.
(Diagram courtesy of NRDC and its project partners)
The heat action plan also involves coordination and cooperation between multiple different government responses to create an integrated emergency response system. The flowchart on the left details the coordinated action between government departments and other stakeholders. These agencies will work together to reach as many residents as possible. There are even plans to coordinate with key electric and water providers during the most extreme temperatures.
In the coming months, key stakeholders will continue to meet, discuss and revise the early warning system and the heat action plan. Keep an eye on the India Initiative website
Monday, May 20, 2013
By Guest Author, Eric Biber, Professor of Law, University of California Berkeley
I (Josh Galperin, Associate Director, Yale Center for Environmental Law and Policy) have two forthcoming publications that argue against the growing "eat the invaders" or "invasivore" movement. Invasive species are a serious ecological and economic problem. The invasivore movement supposes that we can control biological invasions with a fork and knife. My collaborators and I see several problems with this argument. One of the leading problems is that generating enough culinary interest in an invasive species to actually impact its population will lead to cultural endearment. There are examples of invasive species, despite manifest ecological and economic damage, becoming important cultural icons. Even though it has nothing to do with food, the eucalyptus tree in California is one such example.
How Eucalyptus Trees Are Connected to Denying Climate Change
Here on Legal Planet, we talk a lot about climate skeptics/deniers, and we’re highly critical of them (for good reason!). A lot of those climate skeptics/deniers are conservatives.
But there’s no monopoly on scientific ignorance on one end of the political spectrum. An example of that is close to home here at UC Berkeley.
Let me be clear here. Cutting down eucalyptus trees to reduce fire risk and restore native plants and ecosystems is generally an environmentally sensible thing to do. It will help native plants and animals do better. And it will keep people safer. Those who argue otherwise are ignoring a lot of fairly clear ecological evidence, primarily because of other prior commitments they have (such as, logging is bad, or chemicals are bad). Sounds a little like climate skeptics/deniers to me.
Wednesday, May 15, 2013
By Josh Galperin, Associate Director
The United States Supreme Court didn’t do anything particularly interesting on Monday, May 13. All they did was issue a sound ruling on a reasonably simple legal question. The problem is that the facts of the case deal with thorny social issues that fuel the blogosfire: genetically modified foods and the role of multinational corporations.
The case, Bowman v. Monsanto, is about the use and re-use of genetically modified soybeans. Monsanto developed and sells Roundup Ready soybeans. The genetically modified (GMO) beans are pesticide resistant, allowing a farmer to spray the Roundup pesticide without harming the crop. Monsanto sells Roundup Ready soybeans with a license that allows the farmer to plant and harvest the first generation of beans but explicitly prohibits the farmer from saving seeds and planting a second generation. With this restriction Monsanto assures that any farmer who wants the benefit of Roundup Ready beans will pay for that benefit each year.
Vernon Bowman bought Roundup Ready soybeans each year for his full-season crop – but not for the late-season crop he planted after harvesting his winter wheat. Roundup Ready seeds cost 300 percent more than traditional seeds and because the yield of a late-season planting is lower, Bowman did not want to invest such a large sum. Instead he bought beans from the local grain elevator and planted them. Nearly all soybeans grown in the United States are Roundup Ready, so when Bowman sprayed Roundup on his late-season crop, nearly all the beans survived. In addition to selling these beans, Bowman saved seeds and used them on his double crop acres in following years.
Monsanto sued Bowman, arguing that its patent on Roundup Ready beans allows the company to restrict copying. Bowman countered that the legal doctrine of patent exhaustion protects him. Patent exhaustion prohibits a patent holder like Monsanto from controlling the use of its patented product after the patent holder’s initial sale. It is permissible, Bowmen therefore argued, to plant the offspring of patented soybeans because the patent exhausts after a farmer buys the seeds from Monsanto.
The Court disagreed.
As the Court explained, it is well settled law that the purchaser of a patented item may use that item as he wants, either using it directly, reselling it, or letting it rot in the basement. It is not, however, permissible to copy the patented item, which is what Bowman was doing by planting second-generation seeds. Emerging 3D printing technology provides a good example. If I purchase a 3D printer I can use that printer to print widgets or I can sell the printer to somebody else, but I cannot use it to print an identical 3D printer. Patent exhaustion allows a buyer to do what she will with the purchased article, but not with the intellectual property that is embedded in that article.
Bowman also argued that this case is not an example of simple copying, as it would be with the printer, because the seeds grow naturally, without his initiative. The Court called this the “blame the bean” defense. Perhaps they would have been more sympathetic if Bowman could have argued that preventing growth of a second generation was a significant burden but in fact, it took significant effort—including planting, watering, spraying, and harvesting—to get the descendant generations.
The Supreme Court was in unanimous agreement about the extent of the patent protection in this case, which should blunt public outrage. Nonetheless, the ruling has sparked hyperbolic and ideological arguments about the role of GMOs and corporate farming. Monsanto itself hailed the ruling as evidence that the Court recognizes that Monsanto’s GMO creation “feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.” On the other hand the Center for Food Safety, an organic and non-GMO advocacy group says the “Supreme Court Rules against Farmers.” The patent protection given to the “agrochemical giant” is “destructive to farmers, agriculture as an industry, food security and consumer health and safety” according to the Center.
I tend to agree with the general positions of organizations like the Center for Food Safety. The hegemony of firms like Monsanto and the rapid spread of products like Roundup Ready soybeans are troubling from a social, economic, and environmental perspective. However, Bowman v. Monsanto is not about these larger issues. This is a case about patent law, not genetic modification or corporate dominance. The question presented to the court was not whether a company can patent genes or whether traditional farming practices trump organic agriculture. The question was whether a farmer may reproduce a patented seed without the patent holder’s permission.
Patent protection allows firms to invest in research and development with the knowledge that when they make a breakthrough they can profit from their investment without fear that after the first sale they will no longer control their intellectual property. Although this protection might seem dubious when it protects the genetic modifications of agrochemical giants, it is the same incentive that helps spur methane digesters, solar panels, smart meters, and other important technological advances that can benefit the environment and small farmers.
Tuesday, April 23, 2013
By Bruce Ho
In the Yale Center for Environmental Law and Policy’s second annual Policy Workshop Webinar Series, we looked at “Emerging Issues in Shale Gas Development” with the help of a distinguished group of experts from multiple sectors and fields. In case you missed any of our events this year, or would like to review a presentation, I have catalogued our shale gas webinars and interviews below, including links to summary blog posts and video recordings as well as additional readings, videos, and audio clips so that you can learn more about the issues that each of our speakers discussed.
The Policy Workshop Webinar Series will continue next academic year, 2013-2014, with an examination of environmental law and policy issues in the area of food and agriculture.
Emerging Issues in Shale Gas Development
September 18, 2012: Economics and Risk Assessment (Interview): As a prelude to the webinar series, Sheila Olmstead, a Fellow at Resources for the Future, discussed some of the implications of the shale gas boom. Read more and watch this interview here.
October 10, 2012: Overview of Environmental Impacts: Dr. Jim Saiers, Professor and Associate Dean of Academic Affairs at the Yale School of Forestry and Environmental Studies, presented an overview of shale gas development and its implications for the environment. Read more and watch this webinar here.
November 8, 2012: Climate Impacts: Dr. Ramón Alvarez, a senior scientist at the Environmental Defense Fund (EDF) presented research from a paper he recently co-authored on natural gas use and its implications for climate change. Read more and watch this webinar here.
December 5, 2012: Overview of the Current U.S. Regulatory Framework: Florida State Law Professor Hannah Wiseman provided a comprehensive overview of the current legal regimes governing shale gas development, including state and federal statutes, local zoning, agency directives, and the common law. Read more and watch this webinar here.
January 23, 2013: An Industry Perspective: Mark Boling, President of V+ Development Solutions, a division of Southwestern Energy Company, presented on “Balancing Environmental, Social and Economic Impacts of Shale Gas Development Activities.” Read more and watch this webinar here.
Additional viewing: Mr. Boling’s presentation at the MIT Enterprise Forum of Texas.
February 12, 2013: Electricity Markets and Clean Energy: Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) presented on “Natural Gas and U.S. Electric Power Futures.” Read more and watch this webinar here.
March 5, 2013: Measuring Greenhouse Gas Emissions (Interview): Dr. Garvin Heath, a senior scientist at the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL), discussed research that he recently completed on the lifecycle greenhouse gas emissions from shale gas produced from Texas’ Barnett Shale. Read more and watch this interview here.
March 7, 2013: A State Perspective: Tom Hunt from the Colorado Energy Office presented on “The Future of Oil and Gas Production in Colorado.” Read more and watch this webinar here.
March 29, 2013: Community Impacts: Susan Phillips from public radio station WHYY in Philadelphia discussed Marcellus Shale gas development in Pennsylvania. The stories that she presented were originally reported by Ms. Phillips and her colleagues as part of StateImpact Pennsylvania, an award-winning collaboration between WHYY, National Public Radio (NPR), and WITF in Harrisburg. Read more and watch this webinar here.
April 12, 2013: An Environmental Perspective: Kate Sinding, Senior Attorney and Deputy Director of the Natural Resources Defense Council (NRDC)’s New York Program, discussed fracking from the perspective of an environmental organization. Read more and watch this webinar here.
By Bruce Ho
On Friday, April 12, Kate Sinding, Senior Attorney and Deputy Director of the New York Program at the Natural Resource Defense Council (NRDC), discussed fracking from the perspective of an environmental organization as part the Yale Center for Environmental Law and Policy’s Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.” Ms. Sinding’s webinar, which was the final event in this year’s webinar series, can be viewed below. Her slides are also available for download here.
State and Local Regulatory Issues for Fracking from YCELP on Vimeo.
In her webinar, Ms. Sinding discussed the many concerns that NRDC and others in the environmental community have about fracking and oil and gas development more broadly, including pollution of aquifers and surface water, air pollution, contributions to climate change from both use of fossil fuels and their production, public health impacts, and impacts on communities where oil and gas drilling occurs. She noted that there are many holes in our current understanding of these impacts – particularly in the area of public health – as well as in the the regulatory regimes needed to adequately protect communities from these impacts in both the short- and long-term. While some states are doing a better job of addressing fracking impacts than others, Ms. Sinding said that NRDC does not believe that any state currently provides an effective model for regulating in this area.
Due to the uncertainty surrounding fracking and other oil and gas impacts, Ms. Sinding noted that NRDC’s national position on fracking is that “NRDC opposes expanded fracking until effective safeguards are in place.” She described this position as:
Pragmatic – working to achieve the necessary transition to a clean energy economy while simultaneously recognizing that fossil fuels are likely to continue to play a role in our energy portfolio for the foreseeable future and working to address the adverse environmental impacts from this oil and gas development.
Flexible – designed to operate across the various political realities in the U.S. and abroad, including states where fracking is not yet occurring (e.g., New York) and states where oil and gas production is occurring and needs more effective environmental safeguards (e.g., Pennsylvania).
Protective – emphasizing that the current regulation of fracking and oil and gas production as a whole is inadequate – due to both numerous exemptions under federal law and a patchwork of state responses – and that more effective regulations and scientific research are needed to protect communities.
In response to these needs, NRDC recently launched a Community Fracking Defense Project, which Ms. Sinding discussed both in her presentation and during the subsequent audience Q&A. More details on this initiative and other NRDC efforts in this area are available on the organization’s Natural Gas Drilling webpage.
Series Recap: Emerging Issues in Shale Gas Development
Ms. Sinding’s webinar concludes the Yale Center for Environmental Law and Policy’s 2012-2013 Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.” For a recap of the series, including links to summary blog posts and video recordings from each of our speakers, please click here.
The Policy Workshop Webinar Series will continue next academic year, 2013-2014, with an examination of environmental law and policy issues in the area of food and agriculture.
Monday, April 08, 2013
By Bruce Ho
On Friday, March 29, as part of our Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development, the Yale Center for Environmental Law and Policy invited Susan Phillips from public radio station WHYY in Philadelphia to discuss Marcellus Shale gas development in Pennsylvania. The stories that she presented were originally reported by Ms. Phillips and her colleagues as part of StateImpact Pennsylvania, an award-winning collaboration between WHYY, National Public Radio (NPR), and WITF in Harrisburg.
You can watch Ms. Phillips’s full presentation below, in which she tells the story of Pennsylvania shale gas through interviews with local community members who are experiencing the effects, both good and bad, of shale gas development firsthand.
Community Impacts of Marcellus Shale Gas from YCELP on Vimeo.
In addition to watching her presentation, I highly recommend that you visit the StateImpact Pennsylvania website to learn more about the issues and individuals whom Ms. Phillips introduced. You might also be interested in watching “The Frontlines of Fracking: Community Voices from Southwest Pennsylvania,” a video produced by graduating Masters student and Yale Center for Environmental Law and Policy research assistant Omar Malik last summer.
Next Time in Emerging Issues in Shale Gas Development
On Friday, April 12, from 1-2pm EDT, the Emerging Issues in Shale Gas Development webinar series will host Kate Sinding from the Natural Resources Defense Council (NRDC) to discuss “Fracking: State and Local Regulatory Issues.”
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
Monday, March 18, 2013
By Susanne Stahl
The Yale Center for Environmental Law & Policy is a joint initiative between Yale Law School and the Yale School of Forestry & Environmental Studies, and we see a lot of interesting and inspiring people come through the doors of both schools throughout the course of a year.
These visionaries will stay a few days, give a lecture or two, and then be on their way again—sometimes with very little record of their visit, the insights they’ve shared, or the passion they’ve breathed into the community inspiring action, change, and possibility.
We launched On the Environment, a podcast series hosted by Center staff and students, to better document these visits and, most importantly, to invite the larger community into the conversation we’re having here about key issues in environmental science, law and policymaking.
The first six podcasts are linked below, but please keep your eye on the On The Environment iTunes or SoundCloud sites, because we will update frequently.
We hope you enjoy the podcasts and the speakers as much as we’ve enjoyed producing the series.
Episode 1: Marissa Knodel, a research assistant at the Center, visits with Andrew Guzman about his new book Overheated: The Human Cost of Climate Change, which explores the real-world consequences of climate change.
Episode 2: (part 1 and part 2): Marissa Knodel talks with Julian Aguon, a writer, activist and attorney, about his work on human and indigenous rights under international law.
Episode 3: (part 1, part 2, and part 3): Aaron Reuben, a Center research assistant, talks with Rolling Stone Contributing Editor Jeff Goodell about his work, the future of environmental journalism, and geoengineering.
If you have comments or suggestions, please don’t hesitate to contact us at email@example.com.
Wednesday, March 13, 2013
By Guest Author, Bessie Schwarz, Yale School of Forestry and Environmental Studies '14
On Thursday, March 7, the Yale Center for Environmental Law and Policy invited Tom Hunt from the Colorado Energy Office (CEO) to present a webinar on “The Future of Oil and Gas Production in Colorado” as part of the Center’s ongoing Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development. CEO, a department within the Governor’s office, oversees energy investments and facilitates the growth of the state’s energy market and industry.
In his presentation, Mr. Hunt discussed the history of oil and gas production in Colorado and the unique political and environmental considerations required for regulating recent growth in the state’s natural gas production, driven primarily by shale gas. Natural gas is a fast moving issue for Colorado, as the state looks to balance the large shale gas reserves now accessible through horizontal drilling and hydraulic fracturing with conventional fossil fuel sources and renewable energy, such as wind. As this energy landscape shifts, CEO faces difficult challenges from private citizens, advocates, local governments, and energy companies. Mr. Hunt touched on these many complexities in his presentation.
You can watch Mr. Hunt’s full presentation below, in which he discusses the role of shale gas in Colorado’s energy portfolio and how the state has approached regulation of the natural gas industry. You can also download his presentation slides separately here.
The Future of Oil and Gas Production in Colorado 3-7-13 1.00 PM from YCELP on Vimeo.
Colorado’s Changing Oil and Gas Landscape
Oil and natural gas exploration is relatively “ancient history” in Colorado. First discovered and tapped in the late 19th century, oil and gas production has followed a boom-bust cycle, but the economies of several of the state’s counties, as well as the broader state economy to a certain degree, depend on these energy resources. Traditionally, oil and gas production and drilling has been concentrated in only a few counties. Mr. Hunt highlighted two of these, Weld and Garfield counties, during his presentation.
But while Colorado has been an oil and gas producing state for many decades, the dynamics of natural gas production in the state are rapidly changing. Since 1999, production of both fuels in Colorado has been on the rise with oil growing 125% and gas 83%. In 2009, a hydraulic fracturing operation also first unlocked a large previously inaccessible reserve of natural gas. In the subsequent years, a hydraulic fracturing boom has increased both the intensity of gas production in Colorado and expanded this industry into new areas of the state. These new areas include some of Colorado’s most populated towns, including parts of the Denver metropolitan area. As oil and gas production has entered new communities, it has sparked debates and spurred staunch opposition from some citizens and towns dotting the state’s new gas regions.
Regulating Natural Gas Development
The changing field of oil and gas in Colorado has forced new considerations of benefits and concerns, regulatory options, and legal issues. Mr. Hunt explained that in its energy-planning role, his office must weigh the interests of all of the state’s 5 million residents and the long-term protection of the state’s economy and environment. A major factor in this debate is the fact that the oil and gas industry currently employs 40,000 workers in Colorado and is a major economic driver. For example, the state exports (sells) three quarters of the gas that it produces.
Responding to concerns about air quality, health, noise, water scarcity, threats to the state’s world-renowned open spaces, and other issues, Colorado has striven to become a national leader in the regulation of natural gas. For example, Mr. Hunt noted that almost half of the policy recommendations contained in the International Energy Agency (IEA)’s 2012 report “Golden Rules for a Golden Age of Gas” are taken from Colorado state rules. You can find the details of the IEA’s report here. Among the policies that Mr. Hunt highlighted are new rules for impact mitigation, safety buffers around residential areas, and transparent communication for operations. These rules require drilling buffers of 500 feet around residential areas and disclosure of hydraulic fracturing fluids, although with exemptions for companies wishing to protect fluid components as “trade secrets.” Future steps will include a new interstate partnership coordinating natural gas vehicle programs and investments as well as several air emissions studies.
Colorado’s current hydraulic fracturing regulations are largely the result of two hotly debated rulemakings in 2011 and 2012, which involved companies, stakeholder groups, and legislators.
Ongoing Questions for Natural Gas in Colorado
In the complicated future of natural gas production in Colorado, renewable energy and questions about local versus state jurisdiction over gas regulation are likely to take center stage.
Wind and solar energy are among Colorado’s rich natural resources, and while these clean energies have traditionally represented a small fraction of the state’s energy portfolio, wind in particular is a promising source of current and future revenue and energy. Colorado is ranked 10th in the country for wind production and is home to the North American offices of Vestas Wind Systems, the world’s largest wind company. To encourage growth in this industry, Colorado has some of the country’s strongest renewable energy policies including a Renewable Energy Portfolio, which diversifies the state’s energy and helps build toward a clean energy future. CEO is responsible for balancing renewable energy with natural gas, coal, and other energy resources.
As new communities in Colorado react to new gas production within their boundaries, local legal fights have begun to dominate the debate in Colorado as they have in many other states that are looking to regulate and develop their shale gas resources. Some of Colorado’s most politically conservative towns have enacted moratoriums to gas, including two bans in the last few months, but it remains unclear if towns and cities have the legal authority to adopt such protections under Colorado law. In recent years, some states including Pennsylvania have explicitly prohibited such actions by local authorities. In Colorado, the City of Longmont and more recently the City of Fort Collins have adopted hydraulic fracturing bans, and these measures are now battlegrounds in the state debate. Longmont is currently being sued by the Governor to overturn its moratorium.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will pick up next with a presentation by reporters Scott Detrow and Susan Phillips on “The Community Impacts of Marcellus Shale Gas Development,” which will draw on their award-winning coverage of hydraulic fracturing in Pennsylvania as part of National Public Radio (NPR)’s StateImpact Pennsylvania series. Mr. Detrow and Ms. Phillips’s webinar will take place on Friday, March 29, from 12-1:30pm EDT.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
Tuesday, March 12, 2013
By Guest Author, Laura Johnson and Omar Malik, FES '13
Among the traffic jams, food vendors and bustling streets, visitors from around the world are gathering in Bangkok, Thailand to discuss international wildlife policies and conservation issues. This year marks the 40th anniversary of the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES, recently reaching 178 member countries, is the oldest multilateral environmental agreement and is generally regarded as one of the most successful examples of international cooperation on the environment.
CITES is well known in the international community as a comparatively quick and effective decisionmaking framework. This is due in part to the requirements of a two-thirds majority for the adoption of a proposal. Others treaties are not as straightforward. For example, the United Nations Framework Convention on Climate Change (UNFCCC) requires a consensus among countries, often resulting in lengthy debates that may span several years before coming to a decision. This was evident at the 18th UNFCCC Conference of the Parties (COP18) in 2012, when countries finally agreed to a decision that was supposed to have been adopted at COP17 in 2011. Even then, this was only an agreement to reach consensus on the creation of a new treaty by 2015.
The two treaties also differ in terms of implementation. Depending on the threat to a species from international trade, member countries to CITES may propose a species listing on one of three appendices, ranging from voluntary precautionary management at the national level to mandatory international trade controls. By comparison, the outcomes of UNFCCC involve aspirations to change domestic economic energy and transportation structures, implement carbon control measures and work towards adaptation and mitigation targets.
As two researchers from the Yale Center for Environmental Law & Policy (YCELP), and students at the Yale School of Forestry and Environmental Studies (FES), we are witnessing the quick and effective environmental policymaking of CITES in action at this sixteenth meeting of the Conference of the Parties (CoP16). It’s a chance to see how important conservation messages, after building upon citizen support and scientific understanding, are moved through the system from stakeholders to policymakers to become a part of the global policy agenda. (Our colleagues who attended the 18th Conference of the Parties to the UNFCCC this past year in Doha, Qatar witnessed quite a different process.)
Several major topics are on the CoP16 agenda, including the protection of elephants and sharks and strategies for reaching global environmental sustainability goals.
The conference opened with strong support for elephant protection from the Prime Minister of Thailand, Yingluck Shinawatra, which she described as an integral part of Thai culture. Elephants have been a recurring theme in the CITES negotiations, as ivory trade continues to increase and populations become more threatened. Other distinguished visitors expressed their support, including UN Environment Programme Executive Director Achim Steiner and Prince William, who sent in a personal video message on the urgency of elephant conservation. They also mentioned the explicit need to guard against shark exploitation – which is where we come in.
Last month, we helped organize a symposium on shark conservation at FES with classmates Leah Meth and Onon Bayasgalan as part of a course on international organizations and conferences. Leah and Onon are also the driving forces behind the related Shark Stanley campaign – which is itself part of a broader effort to gain support for the protection of shark and manta ray species at CoP16.
The Shark Stanley campaign is an example of the behind-the-scenes efforts to achieve new legal standards in the international community. In conjunction with our work at YCELP, our involvement at CoP16 has taught us how important CITES is as a tool for successfully managing the Earth’s valuable species and ecosystems.
Sunday’s opening ceremony included several statements on the need for following through on the aspirations put forward at the 2012 Rio+20 conference relating to the Sustainable Development Goals. To this end, CITES has served as a promising platform for agendas on natural resource conservation, and it also has provided a collection of lessons learned that can be applied to other efforts towards global sustainability. The success of CITES is undoubtedly due to its ability to enable action on international commitment. As described by Secretary-General John E. Scanlon, CITES “stands out,” and the decisions made at CoP16 will “find their way into legislation, regulation, and operating practices across the globe.”