Category: Environmental Law


Accounting for Power

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.
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Charismatic Megafauna Take the Fall

Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.


Confidentiality Clauses and BP

BP is trying to lock up information about the consequences of the gulf oil spill by enticing oceanographers to enter into consulting contracts complete with NDAs. The researchers, naturally, deny that payments will influence their data collection or conclusions: ““The data are what the data are.” But BP seems to be trying to buy off entire segments of the academy, denying funding to those who won’t agree to keep their results a secret:

“Faculty who are not contracting with BP or the government want to do independent research in the Gulf and along the coast,  . . . But they are finding funding and access very hard to come by. … [And BP was] rejected in an attempt to contract with the University of South Alabama’s entire marine sciences department. But individual faculty still have the freedom to do so, said department chairman Bob Shipp.”

Now I’m not sure that an NDA preventing disclosure of a catastrophic society risk would be enforceable.  So as an initial matter, I wonder whether BP is really getting what it thinks it is buying.  But more generally, isn’t this exactly the kind of low-hanging political fruit that the Obama administration  would do well to pick?  It ought to be easy to force BP to surrender its right to enforce these NDAs as a condition for receiving one of the many other kinds of federal largess that comes its way, or for the state to insist that faculty not enter into agreements like these as a condition of their continued employment.  The argument that academic freedom means that you get to make money on a consulting contract and to sign a nondisclosure agreement that prevents the public from knowing what might be harming it seems to me to be quite weak.

(H/T: Robert Blumberg, TLS ’12)

A Modest Proposal for Climate Change Adaptation

Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.


Book Review: Kysar’s Regulating From Nowhere

Regulating From Nowhere: Environmental Law and the Search for Objectivity.  By Douglas A. Kysar.  New Haven, CT: Yale University Press.  2010.  Pp. vii, 314.  $45.00

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America.  Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals.  Kysar makes this argument energetically, even passionately at times.  He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us in our search for any truly objective measurement of our national commitment to environmental quality as against, say, individual autonomy.  The ideologues who keep insisting still today that “willingness to pay” surveys or the other crude tools economists are taught to use as metrics of valuation are all we have to interpret these statutes will find this book disconcerting, I’m sure.  For it makes no apologies in arguing that we among the living and powerful today have deeper obligations—obligations to other cultures, future generations, and to nonhuman life—than our ‘willingness to pay’ will ever reflect.

Still further below the surface is an incipient attack on the “value monism” inherent in any conception of “public welfare” yet devised.  This is easily the boldest aspect of a bold book and I hope it gets a wider audience than, say, the few hundred legal and economics academics who dwell on the use of cost-benefit analysis in regulation today.  A value monist, in Kysar’s view, sees “environmental values” like clean streams, biodiversity, or functioning wetlands, as fungible benefits that can and ought to be liquidated in some way so that they can be allocated to the highest bidder (usually, the highest bidder of money).  Pluralist or “expressivist” versions of value deny that any such translatability can be achieved, in theory or in practice.  Places and times are unique in their valuations of “organic unities” like clean streams, estuaries, or biodiversity, an argument made by philosophers like G.E. Moore and David Ross many, many years ago.  The problem, of course, is that that mode of valuation is essentially inaccessible to the modern administrative agency.  How would an agency like EPA, the legal embodiment of a large, aggregative jurisdiction, sort out the organic unities that are to be valued as wholes from the commodities or commodity storehouses (like coal mines, corn fields, and cows) on which our modern economy rests?  If EPA’s actual record of regulation prior to the onset of its now enveloping cost-benefit neuroses is any measure, administrative agencies like EPA are just not the kind of institution where organic unities go to be properly valued. Read More


Climate Change

One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.

Don’t Cry for Conchita (or the rest of Dogland)

Today, the WSJ covers a tale of trusts & estates intrigue even more compelling than Leona Helmsley’s:

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by considering the life of dogs in the United States. According to a recent estimate . . . in 2007-2008 the average yearly expenses associated with owning a dog were $1425 . . . For sake of argument, let us pretend that these dogs in the US constitute their own nation, Dogland, with their average maintenance costs representing the average income of this nation of dogs.

By such a standard, their income would place Dogland squarely as a middle-income nation, above countries such as Paraguay and Egypt. In fact, the income of Dogland would place its canine inhabitants above more than 40 percent of the world population. . . . And if we were to focus exclusively on health care expenditures, the gap becomes monumental: the average yearly expenditures in Dogland would be higher than health care expenditures in countries that account for over 80% of the world population. (xv)

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Just What the Oil Industry Needs: More Trade Secrecy

I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.

As Tom Dickinson’s excellent Rolling Stone article describes the issue,

On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant that is banned in England at the source of the leak – an unprecedented practice in the deep ocean. “The effort should be in recovering the oil, not making it more difficult to recover by dispersing it,” says Sylvia Earle, a famed oceanographer and former NOAA chief scientist who helped the agency confront the world’s worst-ever oil spill in the Persian Gulf after the first Iraq War. The chemical assault appeared geared, she says, “to improving the appearance of the problem rather than solving the problem.”

Now we are learning that the some of the dispersants had “no toxicity studies” done to support their use, and we cannot even find out what is in them:
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Oil Addiction?

Responding to the ever-deepening crisis of the BP spill, Andrew Sullivan writes the following:

[Y]ou have to be emotionally and spiritually dead not to watch this and not feel some deep qualms about what our civilization is doing to its environment and to itself. The addiction metaphor – even used by George W. Bush by the end of his term – is the only apposite one. We’re like junkies trying to find a new vein. It keeps us alive and growing, but that simply brings into sharper focus the moral and spiritual costs of exploitation of the earth rather than prudent stewardship.

To sharpen the point, I’d say the impending loss of the gulf is a bit reminiscent of the closing scenes in the film “Requiem for a Dream,” where an addict’s arm is at stake. But another conservative, Jeff Jacoby, takes the following position:

[In 1974,] psychiatrist Thomas Szasz wrote in The New York Times that “oil addiction is equivalent to drug addiction.’’ But it’s not. . . . Americans consume oil not because they are “addicted’’ to it, but because it enriches their lives, making possible prosperity, comfort, and mobility that would have been all but unimaginable just a few generations ago. . . . The United States consumes more than 300 billion gallons of oil per year, nearly two-thirds of it imported. . . . What we have isn’t an addiction, but a blessing.

What I find curious about the professed “conservatism” of Jacoby’s position is that it rests on an attitude of entitlement and self-indulgence that conservatives seem to find repugnant in so many other contexts. As usual, Andrew Bacevich lays out the broader context precisely:

[Mainstream] Democrats agree with Republicans on the “concrete interests” of Americans: preserving what Bacevich calls our “empire of consumption.” ([Bacevich] borrowed the term from Harvard historian Charles Maier.) After WWII, the US was an “empire of production” – “we made the stuff that everybody else wanted.” So the country did not go into debt. “But we have increasingly become a culture that emphasizes consumption – limitless consumption . . . while others, notably China and Japan, have become the source of the goods we consume. There’s something fundamentally out of whack here. This disparity between what we produce and what we consume is simply not sustainable.”

To quantify matters: “Between 1995 and 2005, U.S. consumption grew from 17.7 million barrels a day to 20.7 million barrels a day, a 3 million barrel a day increase. China, by comparison, increased consumption from 3.4 million barrels a day to 7 million barrels a day, an increase of 3.6 million barrels a day, in the same time frame.” In other words, with less than a third of the population of China, the U.S. increased its oil consumption over a decade-long period by nearly the same amount as the entire nation of China began with! We continued building bigger cars, and bigger houses, ever further apart, assuring an ever-deeper environmental footprint.

Given the fungibility of food and fuel, we are effectively starving people to feed cars. The type of lifestyle that Jacoby celebrates may not have been a self-harming addiction as long as the structural violence it fueled was kept far away. Now it’s at the gulf coast. Perhaps Jacoby will “get it” if the loop current feeds tarballs up to the Cape.

Photo Credit: EtienneCoutu.