Scuba diving is my family’s hobby, and we have dived (and snorkeled) throughout the Caribbean. I have seen almost anything imaginable on dives except for sharks. I know (and actually hope) they are there, swimming at the edge of the reef, but I haven’t been fortunate to see one yet.

My favorite animal to spot is a ray. The eagle rays look like birds soaring through the water. Once I came close to a barracuda. In my excitement I forgot to back away and had to be pulled back. Another time our boat came upon a pod of dolphins that jumped and raced with the boat.

The most intense dive I’ve done was a night dive under the town pier in Kralendijk, Bonaire (the Netherlands Antilles). Entering from the shore, all I could see at first was the fins of the person swimming in front of me. Slowly we descended to about thirty feet. In a night dive, everything is dark except for the blinking lights of the flashlights carried by other divers. My goal was to keep the dive leader in sight at all times. We stayed inside the cement columns holding up the pier.

The advantage of a night dive (other than the excitement of swimming in the ocean in the dark), is that you can see the brilliant colors of the animals and coral when you shine your flashlight on them. The colors are more vivid than in the day. Every inch of the columns is covered in an explosion of color: beautiful, healthy coral and anemones. Fish come in to feed at night, and a person can observe their different night behaviors. Our highlights were finding several seahorses and a large eel swaying at the bottom of one column.

In Cozumel, the currents take a person, so you feel like you’re flying. In Jamaica, we dived through some channels that reminded me of wandering through the sandstone cliffs in the Wisconsin Dells.

Underwater, the world is bright and light filled. The closest it comes to is walking or running through an open field.

People like to say that diving is a lazy sport. On some level that’s true—it’s important to conserve your air and swim efficiently. Diving has a meditative quality to it. You have to be aware of your breath and how your movement affects your breath. You have to watch your gauges and monitor your depth and buoyancy. The only thing you hear is your regulator as you breathe in and out.

One of the things I like most about diving is that I really feel integrated with the water and the marine ecosystem when I’m diving. I realize that I am no more important than any of the fish or other creatures in the water. Fish in the wild are intelligent—a person can observe their intelligence through their interactions with other fish. They play, hide, fight, and make friends. They check a person out. Once a juvenile sergeant major fish swam with us for over an hour in a cove in Bermuda.

I haven’t yet dived the Great Lakes, but I’ve heard the wrecks are in excellent condition.

I’d be interested to hear from other divers of the conditions you’re observing at the sites you dive. What are your dive stories? The National Aquarium in Washington, D.C. features exhibits of national marine sanctuaries and parks and makes a great starting point for planning aquatic trips.

If you’re interested in reading more about laws related to the protection of the ocean, read here. Diving without gloves and using a no touch/don’t take policy in the ocean is part of responsible diving and snorkeling. When you eat fish, avoid fish laden with toxins and look for properly harvested fish. Here is a great site on buying and eating fish.

The estimates are truly alarming. Some have argued that the impact on humans will be limited because the vast majority of the material has fallen or leaked into the ocean, where it will disperse and substantially dilute. But dilution is not a great reassurance. Given the extended half-lives of some of these materials, there is reasonable concern that radiation from Fukushima will damage marine habitats for years and, in turn, harm the citizens of Japan and other proximate countries.

Although not discussed in the media, the radiation leak may also violate international law. The United Nations Convention on the Law of the Sea, which entered into force in 1994, requires states-parties such as Japan to take steps to prevent and control pollution into the oceans. One of its provisions mandates that states take measures necessary “to prevent, reduce and control pollution of the marine environment,” including pollution involving the “release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources.” Another provision mandates that states-parties “take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control.”

The Convention seems to cover the type of pollution coming from Fukushima. Radiation leaking from Japanese nuclear reactors into the ocean is a “toxic, harmful or noxious substance[]” from a “land-based source[].” It is also pollution that “result[s] from the use of technologies” under the jurisdiction and control of a state-party.

Whether the Japanese government took “all measures necessary to prevent, reduce and control” the Fukushima pollution is less clear. With the benefit of hindsight, it is obvious that the government did not do enough to prevent radiation from leaking from the nuclear plants into the ocean—if it had, the leaks would not have occurred. But the Convention does not itemize the specific measures that are deemed “necessary,” and there is often a difference between the necessary and the sufficient. The government could theoretically complete “all measures necessary to prevent” radiation leaks and yet still fail to do enough to completely preclude any possibility of a leak. The mere occurrence of pollution, in other words, may not demonstrate a violation, at least as a matter of textual interpretation.

One way to think about the problem is normatively, by asking simply whether there should be a difference between the necessary and the sufficient in this area. In the United States, tort law imposes strict liability for certain ultra-hazardous activities, and in doing so effectively closes the gap between necessity and sufficiency for purposes of liability determinations. But other areas of tort law leave a gap, and thus permit actors to avoid liability by meeting certain minimum standards of conduct even if harm still follows. What is your view? Is strict liability for environmental harms from accidents at nuclear plants the appropriate standard?  Or should international law utilize some other standard?

As an initial matter, perhaps notions of “granting” or “providing” rights already obfuscate a fundamental question; that is, is it honest to say that any human can actually grant rights, or are humans solely in a position to deny fulfillment of rights that exist inherently for the benefit of all beings? 

Although any possible answer to this question will be charged with moral and religious assumptions, its posing is intended to frame the issue of the proper role of humans in protecting those categories of “goods” that may be said to have value (and perhaps some sort of “rights”) separate from that which humans grant or ascribe to them, such as the idea of an inherent benefit in ecosystems unsullied by the wastes of human overconsumption.

The fact that the Anglo-American tradition of anthropocentric rights is not the sole method of allocating or acknowledging rights suggests that there is nothing necessarily or absolutely true about our legal systems’ means of recognizing certain right-holders, to the exclusion of other types.  Indeed, the worldwide history of other cultures’ clear acknowledgement of humans’ component role (as opposed to a central role) in creation and existence suggests that a legal system that includes rights held by or bestowed upon natural systems is equally as logical as a human-based rights system.  Thus, there would seem to be nothing inherently illogical or impossible about a human system that recognizes the rights of nature.  Rather, the concepts of individual property and individual rights that are the hallmarks of Anglo-American legal systems perpetuate assumptions about our role in the world, defining our relationship to resources and natural systems as one of domination and superiority over the natural world.

Currently, that conception of our role in the world—that of controllers—is bringing modern society face to face with the realities of living in a world largely if not entirely beyond our control, and during recent decades we have been forced to begin to modify our legal systems in attempts to protect environmental resources.  However, a fundamental divide between protecting environmental goods for the benefit of humans for their own sake and protecting natural systems for a purpose separate from direct human benefit remains evident in these laws.  The Clean Water Act, for example, seeks to protect water bodies with the goal that those bodies be returned to a “fishable and swimmable” condition, making clear that the law’s intended beneficiaries are the members of the human community.  Similarly, the Clean Air Act’s air quality standards state the Act’s protections in terms of human public health and safety.

Let me be clear here: I do not disagree with the goals of either of these Acts, or with those of numerous other laws intended to curb or reverse the deleterious effects that human activities have had on the planet.  My point is simply to draw attention to the purpose of these laws as solely (or, more generously, “primarily”) benefiting humans, as opposed to having been enacted with the intention of protecting the planet’s natural systems as having a “good” separate from anything that could benefit humans.

For example, while the AEP litigation is pending before the United States Supreme Court, other legal systems throughout the world are affording different potential methods to address the multifarious problems of human-caused environmental alteration and degradation.  In Ecuador, as one example, a fairly recent amendment to that country’s constitution recognized the rights of nature “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”  Notably, similar language has also been incorporated into local laws and resolutions passed by communities in the United States, reaffirming that the sentiment (if perhaps not yet the substance) is clearly reconcilable with the American legal tradition.

Even more recently, the Ecuadorian constitution’s protections for nature were invoked in what could set groundbreaking precedent in adjudicating the “rights of nature.”  The human plaintiffs in the lawsuit (questions of standing, anyone?) allege that harms outside Ecuador, to wit, the Deepwater Horizon oil spill in the Gulf of Mexico in 2010, caused injury to natural systems (or rather “Nature”), and that these injuries are redressable in the Ecuadorian constitutional courts.  The case was filed quite recently, and members of the environmental community, among many others, wait with baited breath to learn how the court will treat the alleged harms and claims for relief, which essentially would require that BP ensure that no such injuries occur in the future, rather than pay monetary compensation or penalties.  Taking a similar approach, Bolivia is also in the process of passing legislation acknowledging and protecting the rights of nature, although the scope and effect of the pending law remain to be seen.

Utilizing a different, more traditional individual-rights approach, the Federated States of Micronesia are seeking to invoke principles of international law to challenge the development of coal-fired power plants on the other side of the globe in the Czech Republic.  The challenge is based on alleged climatic damages caused by the use of fossil fuels.  This method of challenge, which maintains the existing Western framework of the rights of humans as opposed to nature, showcases another way in which the existing legal structures must be manipulated or contorted to remedy the problems caused by human inputs into the non-human natural world.

This approach seeks to massage existing remedies in established legal systems in attempts to ensure the preservation of natural systems.  Perhaps the most notable advocate of such a system in the United States was Justice William O. Douglas, whose position has been characterized by the idea that even trees have standing to redress environmental wrongs.  The fundamental idea of this position is that a human legal system should be able to provide remedies for harms to the environment, solely on the basis of those harms, rather than on any human injuries suffered.  Other attempts have been made to establish claims on behalf of natural objects, species, or particular creatures in the natural world, using concepts of guardianships or trusts to fit protections for the natural world into existing legal systems.  None of these methods of retrofitting, however, fully address the question of whose rights are actually at issue, or whether natural systems can even have “rights” subject to protection by humans legal systems.

The preceding discussion is, admittedly, loaded with numerous assumptions, extra-legal considerations, and other questions left begging.  Moreover, the ideas are nothing new in the realm of legal theory, but merely present issues central to problems of extreme current interest.  Thus, in light of the rapidly expanding base of scientific information, as well as growing fears of climate change, worldwide pollution, loss of natural ecosystems, and loss of species, to name a few, questions of how we grant or recognize rights for the benefit or protection of natural systems should be given substantial consideration in the continuing development of our legal systems.

The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds. 

The private power companies argue that the plaintiffs lack Article III standing, while Petitioner Tennessee Valley Authority, which is a power company owned by the federal government, takes the position that the EPA’s efforts to regulate greenhouse gases following the Massachusetts decision (in fact, those efforts actually came after the initiation of the present suit) require a decision that, prudentially, the case is not proper for judicial decision.  Both Petitioners essentially argue that the EPA’s regulatory efforts displace any common law nuisance claim, and that the case should thus be dismissed.  The displacement analysis is comparable to that of preemption, although the two doctrines are distinguishable.

First, preemption looks to whether an area or subject ostensibly governed by state law is in fact subject to federal law that controls that area, to the exclusion of the state law.  ERISA provides an example of a wholly preempting statute, in that a state law cause of action purporting to address matters governed by ERISA is entirely preempted.  Second, and related to the first difference between displacement and preemption, displacement is favored by the courts, while preemption is not.  Displacement operates under the notion of separation of powers, and on the assumption that law made by a political body is a more appropriate basis on which to decide a legal dispute than is the federal common law.  Conversely, a preemption analysis has as its backdrop strong principles of federalism, so that states’ authority to regulate in an area should not be negated haphazardly.  Accordingly, Congress’s intent to preempt the states in any area must be clear, so that courts have no doubt that the principle of supremacy should govern.

In addition to the tension between principles of federalism and separation of powers underlying the parties’ respective positions, American Electric raises two points that particularly piqued my interest.  First, the case raises interesting issues of justiciability in the face of such sweeping harms, and of the proper role of the courts in our society.  Second, the case presents an opportunity to consider the Precautionary Principle, a concept entirely apropos in the context of global warming.

First, if we take the Respondents’ position at face value, their claim is that they have been injured by the release of greenhouse gasses, that the EPA is not doing anything about it (or at least nowhere near enough), and that the courts should therefore provide redress in the form of equitable relief for the purported public nuisance.  The problem is that the claims in this case are entirely unprecedented, as counsel and some of the Justices noted several times during oral argument.  The potential plaintiffs in these types of claims could include every human on Earth, and the potential defendants include those same people, as well as corporations, livestock, and other greenhouse gas emitters.

The potential scale and import of this case brought to mind the question of what the proper role of a court is, namely, should a court made up of a handful of unelected people decide the proper measure of redress for the impending planet-wide catastrophe that global warming could be?  Although superficially, the answer could be, yes, if there is a wrong, the courts should provide a means of redressing that harm, period, issues of judicial competence and the proper standards by which to afford relief quickly muddy the waters.

As for judicial competence, I am not entirely convinced that a judiciary’s inability to form committees and hold hearings makes it much less capable to deal with complex issues than a legislature.  This notion is underscored by the courts’ regular adjudication of particularly difficult (albeit more individualized) issues in complex, multi-party, multi-jurisdictional litigation.  Also, and as is especially true in this case, with the cause of action grounded in non-constitutional federal common law, any perceived lack of competence can be remedied by legislative or regulatory action.  In fact, even if the Court were to recognize the availability of the common law cause of action at this time, further efforts by the EPA to regulate greenhouse gasses would very likely displace further claims.

The question of creating a workable standard for recovery, however, I believe presents a much more difficult impediment to a judicially crafted form of redress for global warming.  With every member of the industrialized world at fault to some extent, a nuisance action against five of the larger emitters seems wholly out of proportion to the scale of the problem.  Although success in this suit would bring these petitioners under judicial management, the relief would be a mere drop in the atmospheric bucket, with more potential parties than could ever be named, and no reasonable or even judicially available method to determine each source’s pro rata share for their emissions.  More fundamentally, too, is the issue of causation: although the emission of the gasses is surely the most substantial factor, what about every individual who has turned on an electric appliance in the past century?  Is it really equitable to say that the producers, as opposed to the end users of cheap electricity, are the responsible parties?  And should a court make that decision?

Similarly, the second point about the American Electric case that drew my interest was that, as Solicitor General Katyal noted at the outset of his argument, the Court has never heard a case like this before, and, indeed, the world has never faced a crisis like this before.  Although I agree entirely with these statements, they brought to mind a very troublesome point for me, which is that even in light of the near unanimous scientific recognition of human-caused global warming, there is still a substantial push to deny the existence of the phenomenon and to refuse to act upon it.  Now that it has become absolutely clear that global warming is real (or at least as clear as scientific models can get; more on that in a moment) and that it is our fault, the mentality of disregarding science, preferring instead to grope for the halcyon days of peak oil, has the effect of unnecessarily and dangerously obstructing the needed reversal of our habits of consumption that have brought us to the brink.

This mentality is precisely what the concept of the Precautionary Principle is intended to address.  In environmental law and policy, the Precautionary Principle has become a rallying cry in the face of foot-dragging and denialism, urging all members of society to err on the side of caution, especially in the context of global warming.  The precautionary principle states:

When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.  In this context the proponent of an activity, rather than the public, should bear the burden of proof.  The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties.  It must also involve an examination of the full range of alternatives, including no action.

Wingspread Conference, Wingspread Consensus Statement on the Precautionary Principle (1998), http://www.sehn.org/wing.html.

The notion that this is some wacky enviro–theory is belied by the widespread internalization of the principle of precaution across our society.  Although the principle is stated in the first precept of the “Leave No Trace” ethic of wilderness travel (and life generally), which is “Plan Ahead and Prepare,” it is also memorialized in the Boy Scout Motto, “Be Prepared,” which suggests similar preemptive caution of the risks ahead.  But the concept is not limited to outdoorspeople; the general risk averseness that keeps most people from doing exceedingly stupid things, and which has kept humans out of danger for millennia, is precisely the mentality underlying the Precautionary Principle.  Old adages such as “better safe than sorry,” “the early bird catches the worm,” and “a stitch in time saves nine” all suggest that foresight and caution have been long recognized as virtues to be cultivated.

Thus, in light of the virtue of the Precautionary Principle, as well as my prediction that the Court will not allow the federal common law cause of action to go forward in light of the displacing effect of the EPA’s efforts under the Clean Air Act, the global threat facing us all will have to be dealt with the old fashioned way—through individual effort and sacrifice.  So, even if the EPA would not quickly implement rules governing greenhouse gases (which they have), and if the Court declines to acknowledge the common law nuisance claim for greenhouse gas emissions (which, based on the efforts of the EPA, I believe is probably the proper outcome), we can each begin to take the small steps necessary to slow and reverse the effects of those emissions.  We can walk or bike to the grocery store instead of hopping into the car to grab a gallon of milk and a loaf of bread, plant a tree or install an entire native landscape, go meatless one day (or more) each week, or, as we begin the air conditioning season, try to enjoy the seasonal warmth instead of cranking the AC back down to February in Wisconsin.  Each of these efforts is, admittedly, minor and most could even be enjoyable, but the point is that there is plenty that each of us can do, without waiting for Congress, the EPA, or the Court to tell us how to take care of our home.

Cain’s comment is “The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad.”  He explores the tension between the general preference in American law in favor of keeping families together and some specific requirements of immigration law that can break families apart for many years while a parent or spouse seeks to obtain a visa from an American consulate abroad.  As Cain puts its,

This problem arose with the creation by Congress in 1996 of what are known as the unlawful presence bars to admission.  After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy. This Comment argues that they do not. This Comment explains how the system puts families through unnecessary and unjustifiable hardship by imposing a punishment that is disproportionate to the seriousness of the immigration violation. This Comment points to the lack of evidence that the unlawful presence bars significantly deter illegal immigration, and the fact that they tear families apart or force them to move abroad. For these reasons, this Comment recommends that Congress make sensible changes that will promote family unity while imposing penalties that are more proportionate to the seriousness of the immigration violation.

Gabe’s comments is “That the Waters Shall Be Forever Free: Navigating Wisconsin’s Obligations Under the Public Trust Doctrine and the Great Lakes Compact.”  Gabe grapples with a local issue that may set an important precedent with national and even international significance: Waukesha’s efforts to obtain access to drinking water from Lake Michigan.  More specifically, Gabe considers how Wisconsin’s public trust doctrine might be applied to the issue.  Here is his abstract:

The implementation of the Great Lakes Compact stands to be a true “watershed” event in the protection of water resources in and around the Great Lakes. Nowhere is the administration of the Compact and its narrow exceptions more relevant now than in Wisconsin, where the city of Waukesha is preparing to submit the first request for an out-of-basin diversion under the Compact. The contentiousness of Waukesha’s diversion request is amplified by Wisconsin’s long tradition of strong natural resource protections, particularly by the operation of the public trust doctrine. That doctrine has been liberally construed, and extends protections to the public’s right to use waters of the state for numerous purposes, including navigation, recreation, fishing, and even for the enjoyment of natural beauty.

Given the broad scope of the public trust, however, officials and residents of water-poor Waukesha could assert that the doctrine guarantees access to the waters of the state for the purpose of securing safe drinking water. If the public trust doctrine is construed to ensure access for drinking water, then, under the Compact, a denial of a diversion for Waukesha would be in derogation of those state-based water rights; the Compact, however, explicitly disavows any such interference with state water rights. Thus, as the Wisconsin Department of Natural Resources prepares to address Waukesha’s pending application and Wisconsin courts continue to define the scope of the public trust, interested parties await resolution of this potential conflict, which stands to address whether, and how, Wisconsin’s waters will remain “forever free.”

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

Bynum begins his analysis by describing Europe’s commitment to renewable energy and the highs and lows of the offshore windpower industry abroad.  He then explores the federal and state regulatory regimes that govern such projects in Wisconsin and observes that there are significant obstacles facing developers.  Bynum argues that we should learn from the European experience and concludes by offering several proposals, such as providing federal loan guarantees and creating a new state office of “offshore wind coordinator,” to promote the development of offshore wind projects in Wisconsin.

Donald Stroud’s comment, which garnered the Silver Quill Award last spring, focuses on the use of Wisconsin’s Deceptive Trade Practices Act (DTPA) to adjudicate simple breach of contract claims in commercial transactions.  He describes the Wisconsin Supreme Court’s decision in K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc. (2007), which created a way for a contracting party to avoid legitimate but unfavorable terms (in K&S, a restrictive forum selection clause) in the contract by asserting a DTPA claim.  Stroud observes that indiscriminate applications of the DTPA may (1) disrupt expectations and risk allocations that are fairly negotiated into contracts, (2) conflict with UCC provisions, and (3) go beyond the intent behind DTPA.  He recommends the adoption of a “public interest standard” to distinguish between cases that fall within the ambit of the DTPA and those that should be governed by ordinary contract law.  He also suggests that the UCC should trump the DTPA whenever the two are in conflict.

Jessica Farley’s comment undertakes an examination of the conflict between Wisconsin’s open records law and the intellectual property interests of private companies that keep public records on behalf of municipalities in a copyrighted format.  Farley criticizes the state supreme court decision in WIREdata, Inc. v. Village of Sussex (2008), which held that a municipality complied with the state’s open records law when it provided the plaintiff with PDF versions of requested records, even though the data contained in such files were not manipulable and, therefore, useless to the plaintiff.  She observes that the court dodged the central issue in the case – whether the open records law requires a municipality to provide records in a more usable format when so requested – and argues that the statutory language and purpose of the open records law demand meaningful access to information.  Farley concludes that in light of this important public interest copyright must yield, and proposes an amendment to the law that would include usability as a factor for determining compliance with the open records law.

Last but not least, Rachel Helmers has written a comment critiquing federal courts’ treatment of negative equity that is rolled into a new car loan as a purchase money security interest (PMSI).  PMSI status not only grants super-priority on the collateral (here, the car) to the lender under the UCC, but it also protects the lender from cramdown under the 2005 amendments to the Bankruptcy Code.  Helmers argues that shielding the negative equity portion of a car loan from cramdown in a Chapter 13 bankruptcy does not effectuate congressional intent in the 2005 amendments and fails to treat similarly-situated creditors alike.  She urges courts to follow the “dual status” rule, which would separate the negative equity from the remaining amount of the loan used to purchase the car and treat only the latter as a PMSI.

Ryann Beck — who just graduated in May — won this year’s competition with her article entitled “Farmers’ Rights and Open Source Licensing.” Michael O’Hear blogged here about Ryann’s article, which will be published in the Arizona Journal of Environmental Law and Policy.

Ryann received a cash prize for winning the competition, and her article will also be published by the Environmental Law Section on its website. Congratulations, Ryann!

I recently posted on the problem of biopiracy – the appropriation of genetic resources from developing nations by pharmaceutical and other companies.  Similar concerns have been raised about agro-companies obtaining exclusive intellectual property rights in plant genetic resources that have been first developed and used by farmers in developing nations. 

Fortunately, 3L Ryann Beck has come up with a clever solution that involves adapting the open source licencing systems commonly used for computer software.  Under Ryann’s proposal, a nonprofit steward would obtain intellectual property rights in plant genetic materials on behalf of the farmers who developed them.  Packages of the seeds would then be labeled with a “copy-left” license that would preclude purchasers from obtaining enforceable intellectual property rights in the seeds or derivatives of the seeds. 

Ryann’s proposal is contained in a new paper on SSRN.  Her paper got a nice write-up on the IPKat blog a few days ago, and is forthcoming in the Arizona Journal of Environmental Law and Policy.  The abstract appears after the jump. 

The TRIPS treaty requires that WTO members offer patent or sui generis protections for plant life. Yet, many developing countries oppose intellectual property for plant life because, for those nations, plant IP has proven to be financially, environmentally, and socially detrimental. The farmers’ rights movement has grown out of such opposition and is an effort on the part of interest groups and developing countries to afford subsistence farmers control over farming methods and compensation for their contribution to the world’s biodiversity. Developing nations and farmers’ rights groups have spearheaded multiple treaties aiming to curtail plant monopoly rights; however, the treaties have been ineffective and the growing strength of plant monopolies in developed countries is unlikely to wane. Meanwhile, farmers need a solution that allows them to maintain control over their farming practices, preserve traditional cross-breeding methods, and receive compensation for their contribution to the state of the art of crop varieties. Open source provides such a solution. An open source regime protecting farmer-developed plant varieties would utilize intellectual property and copy-left-inspired seed wrap licenses to generate a pool of plant species that farmers could freely grow, improve, and market. Open source programs would further farmers’ rights by protecting farmer-developed resources from predatory monopolization and providing an entity through which farmers can share information and have a voice in agriculture-related policy-making. Additionally, open source pools would act to conserve biodiversity and promote environmentally-friendly farming by encouraging farmers to cultivate plant varieties adapted to local climates and disease instead of using mass-produced seed and treating heavily with pesticides.

The Convention on Biological Diversity aims to strengthen the position of source nations by requiring bioprospectors to obtain prior informed consent before using materials from other nations.  However, the treaty has a weak enforcement mechanism, and the United States is not even a party to it.

Responding to the weaknesses of the CBD, 3L Laura Grebe has an interesting new proposal to incorporate the prior informed consent concept into U.S. patent law.  Her proposal is described and defended in a new paper on SSRN entitled “Requiring Genetic Source Disclosure in the United States.”  In essence, Laura would require patent applicants to disclose the origin of their genetic materials and whether they obtained prior informed consent from the source nations.  Among other things, she hopes that U.S. reforms along these lines would become a model for other nations.

The abstract to Laura’s paper appears after the jump. 

Bioprospecting and biopiracy are an increasing problem, particularly for developing nations. Large companies, usually from developed nations, gather biological samples to use in research, and often patent the results without sharing profits with the nations from which the biological samples were taken. The Convention on Biological Diversity (CBD) attempted to address these issues by stating that natural resources belong to the source nations, and entities wishing to use those resources should obtain prior informed consent before using them. The CBD, however, lacks an enforcement mechanism. Other nations and organizations have proposed amendments to the Agreement on Trade-Related Aspects of Intellectual Property Rights and the Patent Cooperation Treaty to bring these laws more in line with the spirit of the CBD, but there has been little progress made on these proposals. This article provides a proposed genetic source and prior informed consent disclosure that the U.S. can implement that will not significantly upset the current patent regime, bring the U.S. into closer harmony with the CBD, and make the U.S. a model for other nations to implement similar legislation. 

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim.  The noncompensable (in tort) economic losses that will surely hit the Gulf Coast region, particularly in the fishing and tourism industries, will reduce tax revenues at all levels of government and place additional demands on public services. These are losses that taxpayers will have to assume.

With the understandable hostility these days to government-sponsored bailouts of big corporations, it is useful to keep in mind that tort law is one of the most important tools available for making those whose actions injure others pay their own way at minimal cost to the taxpayer. While there is much to criticize about the efficiency and accuracy of the tort process, it is hard to criticize the fundamental goal of tort policy in making responsible parties pick up the tab for the harm that they cause, and in achieving this result without running up huge government costs that must be borne by taxpayers.

Critics of the tort system may respond by saying that BP customers will end up paying at the pump for this tort liability. Those critics would be right. But then, we believe in a free market in which government subsidies and bailouts don’t tip the scales, right?

Here is the abstract for Marvin’s comment on offshore wind projects:

Legislators in a majority of states have recently embarked on novel experiments in alternative energy policy through renewable portfolio standards (RPSs). In many states, RPS policies have been used to spur public and private development of land-based wind power generation facilities. In fact, many states see wind power as an increasingly essential element in their energy portfolios. However, while a few states have investigated the potential of offshore wind projects, or wind farms, none have actually erected wind turbines in their waters. But in many places, the winds of change are blowing. No longer are the continental coasts seen as the only viable sites for offshore wind development. Increasingly, energy policy makers are turning their attention to the Great Lakes.

On January 15, 2009, the Public Service Commission of Wisconsin (PSCW) released its final report of a yearlong study assessing the potential for offshore wind-power generation in Lakes Michigan and Superior. Despite much anticipation, the study’s results were inconclusive, at best. On one hand, the PSCW found that it is “technologically feasible” to generate electricity from wind turbines sited in the middle of Lake Michigan. However, on the other hand the report also conceded that there are a number of “significant technical, economic, environmental, and legal issues to resolve.”

This Comment addresses the most significant legal concerns related to the development of offshore wind farms in Lakes Michigan and Superior, particularly whether and how the existing Wisconsin and federal regulatory schemes would accommodate offshore wind farm development. The Comment also discusses lessons that might be learned from two recent European policy initiatives: (1) the European Union’s 2009 Renewable Energy Directive, which established a comprehensive renewable energy regulatory system based on principles of extensive coordination and cooperation among various governmental entities, and (2) the United Kingdom’s Planning Act 2008, which considerably streamlined the permitting process for substantial national infrastructure projects such as large wind farms, but whose central permitting authority has been typecast as being undemocratic and authoritarian. The Comment identifies opportunities for Wisconsin state legislators to address offshore wind energy in the Great Lakes while simplifying the state’s current regulatory scheme, and discusses the potential for federal-state collaboration in efforts to develop the Great Lakes region’s renewable energy industries, generally, and offshore wind, specifically.

Here is the abstract for Tripp’s comment on the interaction between contract law and the unfair trade practices statute:

It has been said that the law of contracts is an abstraction, a residual component destined to disappear among advancing bodies of other law. Commentators have identified the swift progression of regulation, uniform codes, and statutory law as the driving force in obviating the common law of contracts. Wisconsin is currently in the midst of wrestling with this exact issue; that is, the destiny of contracts and contract law. Wisconsin, by adopting a strong economic loss doctrine, has shown particular distaste for the immersion of tort and contract, but the Wisconsin Supreme Court’s economic loss jurisprudence does not similarly foreclose the potential for statutory law to replace the role of contracts. The court has indicated that facts giving rise to a breach of contract claim may also support recovery under the state’s Deceptive Trade Practices Act (the DTPA). Thus, while the distinction between contract and tort law grows crisper, that between contract and statutory causes of action is becoming significantly more blurry.

The “freedom to contract” principle permits parties to voluntarily adjust their rights and responsibilities by specifying their own terms to which they can expect to be bound. The law, recognizing the societal value in enforcing contracts, makes it difficult for a party to escape its promises once the contract is made. However, by allowing recovery for breach of contract under the DTPA, the supreme court has made it significantly easier for parties to “opt out” of their contract’s terms just by asserting a DTPA claim. Therefore, the extent to which courts will apply and enforce the DTPA over contracts will have a dramatic effect on parties’ ability to escape the terms of their agreements ex post facto.

The thesis of this Comment is that, for the benefit of our contract-based system of economic exchange, prudential boundaries between ordinary contract disputes and DTPA violations are needed in order to preserve the difference between the two. By setting aside valid, freely bargained for contracts in order to enforce the DTPA, the supreme court is visiting unjustifiable harm upon contract law without advancing the DTPA’s purpose. Contracts still play a fundamental role in law and society by protecting agreements that are the lifeblood of our economic system. The DTPA should not be a tool for scrapping this essential institution.

While no blog post can truly capture all that this conference will entail, here is a preview of the panels and topics.  The first morning panel, entitled “Ripples of a Water Ethic in Wisconsin” will set the tone of, and overall theme for, the conference by exploring Wisconsin’s water law tradition and its efforts to protect its water resources.  Building off Wisconsinite Aldo Leopold’s seminal work detailing an ethic for land conservation, this panel will look at fresh water’s special place in Wisconsin’s ethos and address how our society might balance the demand for water today by public and private, agricultural and industrial, and rural and urban interests. 

The second panel of the morning will address the false dichotomy between economic development and environmental protection.  The panel will discuss how many Wisconsin businesses have embraced a strong regulatory framework and developed profitable businesses.  The panel will also address how environmental advocates, regulatory agencies, business, agriculture, and other stakeholders can work together more effectively to ensure that water is available and used in a purposeful fashion.

Following the lunchtime keynote address by Mr. Davis, conference attendees will have the opportunity to attend one of four breakout panels on a variety of topics: water pricing, access to water and the Great Lakes Compact, ground water use and land planning, and water quality.  The second afternoon panel will be another plenary session that highlights examples from other jurisdictions — California; Massachusetts; Minnesota; and Ontario, Canada — and how they are attending to water law and policy.  The final panel of the day will be two experts on water law — Professor Bradley C. Karkkainen of the University of Minnesota Law School and Professor David M. Uhlmann of the University of Michigan Law School — who will reflect on the day’s events and discuss how Wisconsin might continue to move forward on water law and policy.  There will a reception following the last panel.

If you are interested in attending this event, please visit the conference website at http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=4303 where you can register.  You can also contact Assistant Dean for Public Service, Dan Idzikowski at daniel.idzikowski@marquette.edu or me, Professor Matt Parlow, at matthew.parlow@marquette.edu.

Last month, the Environmental Protection Agency (EPA) issued a finding that greenhouse gases, including carbon dioxide, constitute a threat to human health and welfare as defined under the Clean Air Act (CAA).  This is significant because the CAA allows the EPA to regulate any pollutant that the EPA finds a danger to human health and welfare.  As EPA Administrator Lisa Jackson stated, “[i]f we don’t act to reduce greenhouse gas emissions, the planet we will leave to the future will be very different that then one we know today.”  If the EPA does decide to act, the same statement will apply to the U.S. economy.

The EPA’s announcement did not come as a surprise.  In fact, the litigation over this issue has been many years in the making.  Two years ago, in Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that the section of the CAA dealing with “air pollution” was broad enough that it included carbon dioxide.  However, that case centered on the regulation of carbon dioxide emitted from automobiles—the recent EPA finding would be radically more expansive.

Under Title V of the CAA, any entity that emits more than 100 tons per year of an EPA regulated pollutant must first obtain a permit, and then pay an emission fee of around $43 per ton of pollutant.  Because 100 tons is such a small amount of carbon dioxide, this proposed regulatory change would sweep most apartment complexes, commercial buildings, hospitals, and other large buildings under the EPA’s ambit.  The result would force companies to file copious amounts of paperwork and pay substantial fees to continue doing business as usual.

The EPA recognizes this problem, and concedes that this new requirement could increase the number of entities seeking Title V permits from 15,000 a year to six million a year.  That’s a lot of increased paper cuts for EPA bureaucrats, so the Agency has so graciously offered to give Congress a break and rewrite the Clean Air Act itself.  According to the EPA’s new “tailoring rule,” the EPA would only enforce Title V of the CAA for entities that emit more than 25,000 tons of carbon dioxide per year, instead of the 100 tons per year required under the CAA.  The EPA justifies this arrogation of legislative power on the grounds that absurd results would follow if it enforced the CAA literally.  This is ironic, given that the petitioners in Massachusetts v. EPA argued that a literal reading of the CAA required the EPA to regulate carbon dioxide.

It will be interesting to watch the response from Congress.  One interpretation of the EPA’s actions is that the announcement was merely a shot across the bow to the Senate to galvanize the upper-chamber to pass cap-and-trade legislation.  However, after the flap over the Climate Research Unit e-mails, cap-and-trade appears dead.  Thus, Congress could either rewrite the law itself, or call the EPA’s bluff.  Regardless, the decision will have significant consequences for both the economy and the notion of separation of powers.

“He was wrong,” author Robert Glennon told an audience of about 100 Tuesday at the Alumni Memorial Union at Marquette University.  Even as  wells and water supplies move ominously closer to dry in parts of the United States, the public and many policy makers are not responding in ways that could avert major impacts, warned  Glennon, whose books include Unquenchable: America’s Water Crisis and What to Do About It, published last spring.

“We don’t value water in the United States,” Glennon told the session, part of the “On the Issues” series hosted by Mike Gousha, Marquette Law School Distinguished Fellow in Law and Public Policy.

Wisconsin is not standing at the precipice of a water crisis to the same degree as  metropolitan Atlanta and much of the western United States, but it would still be wise to undertake public education efforts here and to make more effective water use decisions, Glennon said. 

He also said the Milwaukee area was doing ”pretty well”  in building itself as a center of water-related economic development, thanks to the number of businesses in the area connected to water use,  the growing involvement of universities, and the presence of Lake Michigan.

Glennon, Morris K. Udall Professor of Law and Public Policy in the Rogers College of Law at the University of Arizona, said water is a finite and exhaustible resource that needs major public attention similar to the way petroleum is regarded. “Water lubricates the American economy just as oil does,” he said.

He said droughts in recent years in some parts of the country were not much different than those in the past. What is different, he said, if the number of people living in places such as Las Vegas, Phoenix, San Diego, Los Angeles, and Atlanta. Policies and practices have not changed to keep up with the demand on water as some water tables and aquifers decline in major ways. “You can’t keep putting more straws in the glass and expect things to get better,” he said.

“We humans have an infinite capacity to deny reality,” Glennon said. He said many Americans follow “a hydro-illogical” cycle when it comes to concern about water, and he likened some decisions – or the absence of decisions – in places such as Georgia, where there remains almost no control on how many new wells are drilled, to operating “a circular firing squad.”

“People who think business as usual and some engineering solutions will solve this crisis are not thinking,” Glennon said.

But he said he was “incredibly optimistic” that solutions would come. He advocated steps such as greater re-use of water, increased water conservation, and increased desalinization of water in coastal areas.

“”I want to take a fresh look at the human toilet,” he said. “We need to figure out a new way of disposing of human waste” that does not use nearly as much water, he said.

He also called for pricing water more realistically for consumers, which would mean substantial price increases for many people and businesses.

But he suggested the biggest steps are likely to involve a combination of government regulation and free market forces. “We are entering an era of water re-allocation,” Glennon said.  “There is no alternative.”  

Glennon, who described himself as coming from the left side of the political spectrum, described instances where farmers and land owners had found it financially attractive to reduce their water use in exchange for payment from others who wanted to use or conserve that water.

“The critical ingredients are moral courage and the political will to act,” Glennon said.

November 20, 2009: An electronic break-in at the University of East Anglia reveals documents and e-mails that appear to show intent to withhold or manipulate certain data; quickly dubbed “Climategate” by climate skeptics, the leaks are at best embarrassing for prominent climate scientists.

November 25, 2009: President Obama announces that the United States will commit to emissions cuts of 17 percent by 2020 and about 83 percent by 2050; Obama also announced that he will personally attend part of the summit.  The pledges are expected to break a logjam of countries that had been waiting for a United States commitment. 

November 29, 2009: India and China indicate that they may walk out of the negotiations if the developed countries do not agree to the sharing of “green” technology and massive economic transfers for a variety of climate change mitigation and abatement purposes, such as stopping deforestation and forest degradation.

No matter what your position is, the challenges are daunting and the stakes are high.  Whatever happens, the Copenhagen summit will be a fascinating opportunity to observe international diplomacy in the environmental context.

Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

Some have argued that environmental resources should not be commoditized because they are nonfungible – or, to extend the argument a bit, that those who assign dollars to nonuse values are improperly comparing apples to oranges.  They argue that the harm of commoditization is not easily quantifiable or verifiable; it is intrinsic, or even has a moral character. 

Most environmentalists would probably argue that nonuse values should be considered in cost-benefit analyses, but they might also believe that commoditization is an intrinsic environmental harm.  Thus, in my view, an unaddressed tension exists between appropriate consideration of environmental nonuse values, and unhealthy commoditization of those same features.  This tension, I believe, cannot easily be resolved.

Based on the economic conditions of the last couple of years, I am amazed that companies are willing to allow others to freely practice inventions which would otherwise generate licensing revenues.  However, some companies have done exactly that.

Obviously, the member companies are not pledging patents that cover core technologies that embody their flagship products.  However, the member companies are all patent savvy.  They invested resources to file applications covering the inventions and pursue the applications through prosecution and patent grant, whereby it is reasonable to assume that the companies found at least some value in the inventions.

The original member companies are IBM, Nokia, Pitney Bowes, and Sony, which collectively pledged 30 patents into the Eco-Patent Commons, at its inception.  Since then, five other companies have joined by pledging at least one patent and there are 95 patents held within the Eco-Patent Commons.

It will be interesting to see if the Eco-Patent Commons continues its growth in the near future.  Or, perhaps increases in “green technology” implementation will prove that these patents can be monetized and entice companies to aggressively seek potential licensees.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime.  Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions.  Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract: 

The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.

Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.

With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.

Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.

I presented the paper at a fascinating conference on environmental crime at Utah Law School, which I posted about here.  The paper will be published in the Utah Law Review.

Some legal commentators in recent months have questioned whether the Obama Stimulus Package will truly create green jobs for the American economy. See, for example, Morriss et. al., Green Job Myths.

Here is some indication how to use those dollars so that they will actually create those jobs.  The following is a press release from the Center on Wisconsin Strategy (COWS), a nonprofit, nonpartisan “think-and-do tank,” dedicated to improving economic performance and living standards in the state of Wisconsin and nationally:

A new report from the Center on Wisconsin Strategy encourages the state to embrace the green-collar potential of a clean energy economy. Greening Wisconsin’s Workforce: Training, Recovery and the Clean Energy Economy looks at how Wisconsin might best use its Recovery Act dollars and first-rate technical college system to ensure that the emerging green economy benefits Wisconsin’s working families. 

“A greener Wisconsin economy can create and retain jobs,” said Sarah White, COWS Senior Associate and the report’s author. “To make real progress, we need to carefully target economic and workforce development, ensuring that “green jobs” are good jobs, and that both unemployed and low-income working adults can access training for them.”

Where are the green jobs? Some are atop wind towers or green rooftops. But more are hiding in plain sight. The vast majority, in fact, will be found in traditional occupations and industries fortified, in some cases, with new green skills. Green-collar workers are machinists, assemblers and truck drivers; pipefitters, insulators and carpenters; technicians, mechanics and maintenance workers; bookkeepers, receptionists, and customer service representatives.  And because most of them will  require more than a high school but less than a 4-year college degree, Wisconsin’s technical colleges will be a key training resource.

Greening Wisconsin’s Workforce offers a brief overview of clean energy training programs already in place at campuses across the state, related Recovery Act resources, and national best practices for green technical training initiatives. The report also urges Wisconsin to green its manufacturing base and includes an appendix of representative occupations in three green sectors:  wind turbine production, energy efficiency, and advanced biofuels.

Drawing on findings from COWS’ influential national report, Greener Pathways: Jobs and Workforce Development in the Clean Energy Economy, the new release makes specific policy recommendations for coordinated, demand-driven training at Wisconsin’s technical colleges and workforce agencies. An additional report examining the role of apprenticeship, apprenticeship prep, and community-based training programs will be released early this summer.

It’s an interesting and important read.  Here is the new report: Greening Wisconsin’s Workforce: Training, Recovery and the Clean Energy Economy.

In retrospect, it strikes me that the proportionality debate has a lot to do with how environmental criminal enforcement is framed: as an aspect of environmental law, or as an aspect of criminal law. 

The speakers who seemed most satisfied with the current state of the law were teachers of environmental law and environmental prosecutors.  From their perspective (to use a metaphor one of the prosecutors suggested), criminal enforcement is just the tip of the environmental enforcement pyramid, with civil and administrative enforcement used for a far greater percentage of environmental violations.  I suspect it is hard for them to see a proportionality issue in criminal enforcement because they see the criminal cases in relation to the civil and administrative cases, and they recognize various ways in which the criminal cases can be ranked as more severe than the noncriminal. 

By contrast, those who teach criminal law (like me) were less comfortable with the status quo.  We are less inclined to see the environmental criminal cases in relation to other environmental cases than to other criminal cases.  In this context — when you are thinking about rapes, robberies, assaults, and other “real” crime – it is hard to see the sense of proportionality in imprisoning a person for recordkeeping violations, or dumping a load of sand onto a wetland on one’s own property, or misunderstanding the notoriously complex hazardous waste disposal regulations — particularly when no actual harm to the environment has been demonstrated. 

I continue to think that the statutes and the sentencing guidelines should be more discriminating — I’ll have a paper focusing on the sentencing side of the equation on SSRN later this semester – but it is helpful for me now to have a better sense of where people with an opposing point of view are getting their sense of proportionality.

Many thanks to the organizers of the conference for facilitating such a lively and illuminating conversation!  Look for papers from the Conference to appear in the next volume of the Utah Law Review.

Playa Vista and Wetlands

As Matt relates in the abstract to his article, he finds the Playa Vista saga to be a hopeful one:

While many businesses are becoming greener, development corporations may have the greatest incentive to integrate environmental values into their everyday business practices. With the effects of urbanization, suburbanization, and sprawl, cities are increasingly requiring environmental mitigation measures for approval of new development. In response, some development corporations may become greenwashed to obtain discretionary land use approvals to build their proposed developments. Others may build greener developments to meet the market demand from environmentally conscious buyers. An increasing number of developers, however, adopt environmentally responsible business practices for, at least in significant part, altruistic reasons. A prime example of this phenomenon is Playa Vista, the more than 1000-acre development in Los Angeles that is currently the largest urban infill project in the country. Playa Vista serves as a useful case study for exploring how developers’ inclusion of various stakeholders–particularly environmentalists–may signal a paradigm shift in how development occurs.

By Matt’s description, Playa Vista does indeed seem a model of environmentally sensitive development, but I’m not so convinced by the characterization of the developers’ motives as altruistic. As Matt describes, a series of developers at Playa Vista were subject to considerable political pressure and hounded by lawsuits from environmental groups for many years before the project took on its present environmentally friendly form. While the current developers have exceeded minimal legal requirements, they have also used environmental consciousness as a marketing tool. This makes me wonder whether there really has been some underlying change in attitude among the developers toward environmental impacts, or whether modifications to the project have instead been motivated by a desire to respond to current, pro-environmental market preferences. There may not be much practical difference today between the two possibilities, but I do wonder how long consumers’ environmental consciousness will survive continued economic hard times. For instance, public resistance to new oil drilling in U.S. coastal areas seems to be melting away in the face of high gas prices. If the environmentalism of consumers is just a passing fad, I suspect that the environmentalism of corporations will prove to be the same.