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On December 11, 2015, Pace Law School hosted the 14th Annual Alfred B. DelBello Land Use and Sustainable Development Conference. The event has formally now been renamed in honor of the former New York State Lieutenant Governor, Westchester County Executive, City of Yonkers Mayor and Councilman to recognize his contributions and service to the region.

This year’s conference theme was: Reflecting on the Past, Planning for the Future: Celebrating 100 years of Zoning.  Tiffany Zezula opened up the event by jokingly mentioning how Professor John Nolon had been eagerly awaiting this event all year, and how he may have been the only person to recognize that it was in fact the 100th anniversary or zoning. The opening plenary panel set out to discuss the history of land use laws and zoning and how the world has been changing with them. Patricia Salkin, Dean and Professor of Law at Touro Law, began by giving a quick summary of the entire 100 years of zoning. Next, Michael Wolf, Professor of Law at University of Florida Levin College of Law, spoke about how zoning and environmental law has intertwined throughout the years. Dwight Merriam, partner at Robinson & Cole LLP, next discussed how technology has affected land use. Followed by Donald Elliot, Director of Clarion Associates, discussed ethical flaws of exclusionary zoning.

Governor Parris Glendening, President of Smart Growth America’s Leadership Institute and the Governors’ Institute on Community Design gave the keynote address on the transformation of smart growth and its implications for the future. He began by giving insight into the factors that affect land use, such as the diversity of the population. Different groups of people desire to live in different kinds of places, such as the current shift of “Millennials” to city areas and the need to have transit lines located nearby. This conflicts with “baby boomers,” whom like to stay located where they are once they have made a home, which raises the question, do zoning developments permit for mixing of generations? The Governor also mentioned the economic factors that have influenced smart growth. The shift in economic development to a “knowledge” based economy from a manufacturing has lead to growth in city areas.

Another point made by the Governor is the need to enact change before an environmental disaster occurs. Almost no effort is made before a disaster to mitigate damage in many regions that are devastated by extreme weather. Changes in the zoning and building codes of such areas can help reduce those damages. If some changes can be made there will be positive economic effects for the residents such as insurance policies no longer listing the area as high risk which will lower their bills. With smart growth, disasters can be mitigated or prevented.

The Land Use and Sustainable Development Conference was a remarkable event with a gathering of some of the best land developers and lawyers in the region. The knowledge and passion of these professionals could be felt all day and made for a truly wonderful event.

By Lenny Cohen

Last year, in the midst of swirling political rumors, Chris Christie was taking major hits to his potential Presidential campaign. On the one hand, he and his administration were facing criticism over the scandal known as “Bridgegate,” where it was rumored that Christie had lanes on the George Washington Bridge closed as retribution for a political matter.

At the same, animal rights activists in New Jersey and across the country were angry with Christie for a different reason. The Governor had recently vetoed a bill that would have effectively placed a ban on the use of gestation crates on pigs in the state. Gestation crates are yet another tool used by the factory farming industry that have animal rights activists up in arms. The crates are used as housing for pregnant pigs, or sows, and often measure six feet by 2 feet. As you can imagine, the crates are extremely small for a full-grown pig and are a far cry from the picturesque image of pigs rolling around happily in mud. A few states, including Florida, Arizona, and California have banned the use of gestation crates entirely. Several other states currently have legislation before them that would outlaw or severely limit the use of crates.

In a 2013 survey, ninety percent of New Jersey residents indicated they were in favor of banning the crates. So, why does New Jersey, with a total pig population of about 9,000 need to keep gestation crates in use?  The answer is more political than one may initially realize. It seems that Governor Christie’s Presidential hopes were highly influential on his veto. As a December, 2014 New York Times article by Mark Bittman explains, “There are [sic] 65 million pigs in the United States, over 20 million of them in Iowa (where crates are standard practice), which is clearly what Christie has in mind: a candidate who supports the status quo on agriculture in Iowa, where the hog industry is worth $7 billion, has it far easier than one who wants to shake things up.” New Jersey residents should be highly disturbed that their Governor is willing to sacrifice ethics for votes.

While it is not clear whether Christie will approve the bill after his Presidential run is over, it is clear that gestation crates are being widely phased out across the country. Major manufacturers and retailers have vowed to not buy or sell pork that has come from a farm using gestation crates. Among them, major fast-food chains like McDonalds, Burger King, and Wendy’s have all made the pledge.

As a nation, we certainly have to take stock of our mass consumption of meat and other agricultural products. The humane and ethical treatment of animals should be a consideration of all voters, and I can only hope Governor Christie feels the wrath of his decision in the polls.

By Sara O’Shea
Preserving Our Quiet Places

The oceans and dark depths of the seas are some of mankind’s like frontiers. Little is known about them or the creatures that inhabit them. However, advancing technology is at the same time opening up the seas as it is threatening them.
As technology is further developed allowing further access to and use of the oceans, the oceans become noisier places. Formerly only disturbed by the natural sounds of ocean waves and whale calls, ship engines, sonar, and air gun blasts now disturb that peace. These disturbances are harmful to the marine mammals who use sonar to communicate, navigate, and find their food. Man-made sonar has been known to change migratory patterns, drive animals from essential habitat, and is believed to have previously caused marine mammals to beach their selves in order to escape the offending sound. A study in the Gulf of Fundy found a significant decrease in the production of whale stress hormone following the September 11, 2001 attacks corresponding with a sharp decrease in ship traffic in the Bay. Sound waves are also believed to cause tissue damage and other severe physical injuries.

In March of this year, the non-governmental organization, Earthjustice, in cooperation with the Conservation Council for Hawaii and numerous other plaintiffs won a summary judgment motion in their favor in District Court of Hawaii against the National Marine Fisheries Service. The plaintiffs had brought the National Marine Fisheries Service to court alleging the defendants’ finding of “negligible impact” under the Marine Mammal Protection Act was arbitrary and capricious, that the defendants’ biological opinion did not satisfy the Endangered Species Act, and that the Final Environmental Impact Statement failed to comply with the National Environmental Policy Act. District Court judge Susan Oki Mollway found that between failing to consider the impact of the actual estimated take rather than the estimated amount, considering enough alternatives or take a “hard look” at environmental consequences, or to use the best scientific evidence available. Conservation Council for Haw., et al., v. Nat’l Marine Fisheries Serv., et al, 2015 WL 1499589 (D. Haw. March 31, 2015) Therefore the court struck down the National Marine Fisheries Services’ decision approving complete use of the Pacific Ocean for Navy sonar practices and trainings and instead in a consent order restricted certain areas and placed other conditions to limit the impact on sensitive populations. Conservation Council for Haw., et al., v. Nat’l Marine Fisheries Serv., et al., Stipulated Settlement Agreement and Order (Sept. 14, 2015). Additionally, the Navy is required to report any deaths related to their practices. Earthjustice reports having been informed of the deaths of two bottlenosed dolphins following a Navy exercise 80 nautical miles away. David Henkin, New Navy Agreement Means Dolphins Won’t Die in Vain, Earthjustice (Nov. 5, 2015), http://earthjustice.org/blog/2015-november/new-navy-agreement-means-dolphins-won-t-die-in-vain.

However, this case is only a partial win. Navy sonar is but one source of underwater sound pollution. A second major source is oil and gas exploration. Oil and gas exploration is conducted using seismic air gun blasts, the returning sound waves help scientists to determine the location of oil and gas deposits under the sea floor. Unfortunately a large area of the Atlantic seaboard has recently been approved for air gun testing to open the area up for oil and gas drilling. With some protections in place for local marine mammal and sea turtle populations, the Hawaiian case raises the question whether the National Marine Fisheries Services’ approval of the Bureau of Ocean Energy and Management’s Environmental Impact Statement and chosen plan was adequate.

My Pace Environmental Law Review Note will analyze the question whether better protections need to be put in place to prevent further harm to sea life. My analysis begins with Earthjustice’s case against the National Marine Fisheries Service and whether this is a true win for the organization and the environment or a procedural, individual win, not applicable to other cases. Second, my note analyzed possible legal protections that could be used to remedy the situation, focusing on those that can be used to create a zoning system that could at least prevent entry into certain areas with buffer zones in place to prevent harm to animals living in those areas.

By Kirsten Yerger

On October 22, 2015, Pace University School of Law’s first Environmental Author-in-Residence, Paul Greenberg, presented a lecture based on his award winning book, Four Fish. Greenberg has traveled the world studying aquaculture and asking pertinent questions on how and why we look at fish and the ocean as we do. In fact, just prior to the lecture, Greenberg spent time in New Guinea where he conducted research and participated in an outdoor TEDtalk.

Greenberg began by explaining the question that has guided his research: Why do we see fish as “flesh architects” rather than the whole fish? He explained that in his studies he has found that “non-fish people” look at fish by their flesh architect; that is, the fish is determined, or grouped with other fish, by what it looks like and what you can do with it, rather than its scientific designation.  Greenberg stated that his phenomenon has only increased over time as new technologies for fish capture developed after World War II and aquaculture emerged and began dominating the market (currently the amount of fish produced through aquaculture is almost more than that caught at sea.)

Greenberg submitted that the main four fish architects are salmon, tuna, sea bass, and cod. Each fish architect has specific attributes and positive and negative impacts on fish wildlife and the environment. For example, wild salmon no longer exists in many areas of the world especially the east coast of the United States where dams interrupt the migratory patterns. Salmon are therefore difficult to fish in the wild yet through selective breeding, have become increasingly efficient to farm. For instance, Salmon only require to two pounds of wild bait in order to produce one pound of Salmon, where Tuna requires twenty pounds!

Additionally many fish that have little to no genetic similarities are categorized in to one flesh architect, defined by certain characteristics. For example, Cod has become any white fish that is able to be fried or act as a “dough delivery system.” Halibut, Atlantic Cod, Alaska Pollock, and Tilapia are all considered to be part of the Cod flesh architect. This is very similar to Bass that has had three different fish considered Bass in the culinary world.

Finally, Greenberg concludes by stating that we need to start to draw the line between wildlife and food. He suggests that we create standards for farming fish based on several different elements, possibly including a carbon analysis or on animal welfare. Ultimately the problem is larger than just deciding when and where to farm certain flesh architect. We must understand the delicate balance of the oceans and marine wildlife and protect them from disruptions.

By Hannah Bartges

“This is a tragic and unfortunate incident, and EPA is taking responsibility to ensure that it is cleaned up. The most important thing throughout this is ensuring the health and safety of the residents and visitors near the river. We are committed to helping the people throughout the Four Corner Regions who rely on these rivers for their drinking water, irrigation water and recreation.  We know how important it is to them.”

-EPA Administrator Gina McCarthy on the Gold King Mine

     On August 5, 2015 EPA personnel were investigating the Gold King Mine near Silverton, Colorado. As they attempted to treat mine water and determine the next steps in its remediation process, pressurized water began to leak out of the mine shaft. About 3 million gallons of mine water spilled into Cement Creek, a tributary of the Animas River. The mine water that entered the tributary system was highly acidic, contained heavy metals, and caused the EPA to declare miles of river unusable.

Although the EPA is attempting to remediate the harm the spill caused San Juan and its tributaries, much of the damage is irreversible. The most striking example is the effect the spill has had on the people of the Navajo Tribe. The Animas River flows through the Navajo lands into the San Juan River. The Navajo rely on the Animas and San Juan Rivers for drinking water, irrigation for their crops, and recreation.

The need for a thriving agricultural community in the Navajo Nation is striking. According to the 2000 Census, 42% of the Navajo Nation’s population was unemployed, and the median household income was $20,000. Although the majority of the Navajo’s income comes from mining, (51% in 2003), many members of the community depend on the Nation’s agricultural output for their families. Many Navajo also rely on the Animas and San Juan Rivers as drinking water. The Navajo Nation Environmental Protection Agency (NNEPA) estimated that 30% of the Navajo population’s drinking water does not come from public water systems. The members of the population that depend on the Gold King spill-affected rivers as a source of drinking water will not have an alternative source in the near future. The Gold King Mine spill will also have an impact on the Navajo’s tourism income. In 2003, three million people came to visit the Navajo’s land. The news of the spill will inevitably have an effect on the number of tourists that visit the area. The pristine landscape of the Navajo Nation has been tarnished by contaminates from the Gold King Mine and will surely have a prolonged dire impact in the Navajo’s already struggling economy.

The need for government action is apparent in these kinds of disasters, but there does not appear to be any help readily available for the people of the Navajo Nation. On October 2, 2015, the Navajo Nation filed an emergency declaration to the Federal Emergency Management Agency (FEMA). Twenty-one days later, FEMA denied the Navajo’s request for relief and “referred [them] back to the EPA.” See Noel Lyn Smith, FEMA Denies Navajo Nation’s Emergency Request, Daily Times, (Oct. 23, 2105), http://www.kare11.com/story/news/local/navajo-nation/2015/10/23/fema-denies-navajo-nations-emergency-request/74441934. The question remains, how can the Navajo Nation recover for the damages that they have incurred from the Gold King Mine Spill?

My Pace Environmental Law Review Note will analyze the possible avenues  that the Navajo and other affected by the spill will have for relief. Although the Obama Administration continues to refer the Navajo back to the EPA, all is not lost. There are two main avenues for relief that can be reached through channels in the EPA: the Federal Tort Claims Act (FTCA), and the Comprehensive Environmental Resource Compensation, Liability, and Recovery Act’s (CERCLA) citizen suit provision

This week, the Department of the Interior published its peer reviewed findings that the EPA-caused spill could have been prevented. The DOI findings can open an avenue of relief to both individuals and communities of peoples living affected area under the FTCA. The finding this week is sure to be the first of many that show the damage caused by the spill never should have happened. My Note will explore the avenues of relief under the FTCA and CERCLA for individuals who were victims of the plague of contamination that was brought into their lives by the federal government.

Post by Scott Wenzel

This year’s Gilbert and Sarah Kerlin Lecture on Environmental Law was given by Senator Richard Blumenthal on Tuesday, October 13, 2015. Senator Blumenthal is currently serving his first term in the United States Senate, which was preceded by four terms (20 years) as Connecticut’s Attorney General, four years as a U.S. Attorney for Connecticut, positions in both the Connecticut House of Representatives and Senate, an aide to Senators Ribicoff and Moynihan, and a clerk to Supreme Court Justice Blackmun. Richard Ottinger, when introducing the Senator, aptly described Senator Blumenthal’s career as, “A splendid life of public service.”

Despite the partisan politics that have stymied Congress, Senator Blumenthal’s message was one of optimism for environmental law. Senator Blumenthal emphasized the role citizen activism can play in environmental enforcement. Quoting Margaret Mead, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.” Senator Blumenthal urged the audience that there are “profoundly significant opportunities and obligations” to become environmental enforcers – in both the public and private sectors.

Senator Blumenthal conceded that the current quagmire the 114th Congress has found itself in is, “real and frustrating and befuddling.” However, Senator Blumenthal suggested that there are great gains to be made by focusing on enforcing environmental laws already on the books. Senator Blumenthal described the need to enforce current laws as “absolutely critical.” The Senator cautioned that ignoring, not enforcing, or disregarding current environmental laws is not only harmful to the environment, but also undermines the legal system as a whole.

Senator Blumenthal cited the Clean Air Amendments of 1990’s effect on acid rain and air quality as an example of environmental laws that, when enforced, have positive and significant outcomes.  Senator Blumenthal also discussed the often contentious intersection of environmental laws and the economy. The Senator posited that economic and environmental enforcement are not at odds with each other; in fact, they are complimentary. Again, citing the Clean Air Amendments of 1990, Senator Blumenthal discussed how the fuel economy standards that the automobile industry initially resisted, have now become central to automobile marketing and advertising campaigns.

Senator Blumenthal said that the “most lethal” threat to the EPA and environmental enforcement are the consistent annual reductions in the EPA budget. In discussing the yearly reductions, Senator Blumenthal described the process as strangling the agency by slashing its budget and depriving it of the resources that it needs. Although several federal agencies have experienced a similar budget squeeze, Senator Blumenthal described the 21% budget reduction over the past five years as “particularly startling.” These cuts particularly impact the enforcement side of the agency, precipitating a loss of 1,000 inspectors at the EPA. The cuts to the EPA budget also have a “ripple impact” on state budgets that depend on EPA funding. This “ripple” equates to a loss of 2,000 or more state inspectors. The practical effect is that the EPA is hindered in monitoring, let alone enforcing, the Nation’s air, water, and soil quality standards.

Senator Blumenthal said that environmental enforcement diverged from its non-partisan roots under President George W. Bush, largely due to special interest groups. Senator Blumenthal described this period of neglecting environmental enforcement as a time of “malign neglect.” During this time, acting as the Attorney General for Connecticut, Senator Blumenthal successfully sought an injunction against President Bush to enforce the laws that President Bush was ignoring. Senator Blumenthal pointed out that under our system of Federalism, there is an opportunity for states to enforce laws that the federal government fails to enforce. The opportunity to enforce laws that have been abandoned by the federal government allows states to have a national voice on environmental enforcement. Environmental enforcement is not dissimilar from other areas of enforcement (e.g. antitrust and tobacco law) that when the federal government abandons the field, states “can and should be aggressive enforcers.”

Senator Blumenthal’s unique experience as Attorney General for Connecticut gave him first-hand experience of how successful state action can be when it comes to environmental enforcement. A large part of that success, however, Senator Blumenthal attributes to the tremendous support of citizens in those efforts. Senator Blumenthal pressed that citizen and environmental group support will be crucial in passing and enforcing legislation like the Waters of the United States Rule and the Clean Power Plan.

The lesson according to Senator Blumenthal: “There is a need for better enforcement.” However, Senator Blumenthal was quick to note that there is ample room for the law to improve. Discussing Volkswagen’s recent emission cheating scandal, Senator Blumenthal opined that there should be a specific criminal penalty for executives that “deliberately and willfully and purposefully” deceive the federal government when it comes to automobiles. “Holding executives who knew or should have known civilly responsible, and if they meet the test of criminal intent, criminally responsible” is what Senator Blumenthal sees as the “new frontier” of environmental enforcement.

Senator Blumenthal concluded by urging the audience that there is plenty of opportunity to make environmental gains with the laws that are currently on the books, and by enforcing those laws, not only will the environment be protected and improved, but so will our legal system as a whole.

“We are in danger of forgetting that a strong public desire to improve the public conditions is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change” Justice Holmes, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

On April 22, 2015 the Supreme Court heard oral arguments for the second time in Horne v. United States Department of Agriculture, Docket. No. 14-275.  This case will require the Supreme Court to further explain their recent regulatory takings jurisprudence post Lingle, and which takings test applies to the USDA marketing orders.

The Hornes, as raisin farmers, must abide by the USDA’s Raisin Marketing Order, a Depression Era regulation. Known as the “world’s most outdated” and “ridiculous” law, the Raisin Marketing Order (“RMO”) requires raisin handlers to set aside a predetermined amount of raisins (reserved) “for account of” the United States. These regulations were implemented to help stabilize the post-depression raisin market. It should be noted that 99.5% of the United States and 40% of the world’s raisins are grown in California. After nearly thirty years of operating Raisin Valley Farms in California, the Hornes created a hybrid producing and handling system, and refused to put aside part of their crop. Producers grow the raisins and then physically deliver their crops to handlers who stem, sort, clean, and set aside the reserve. The Secretary of Agriculture (USDA) fined the Hornes the equivalent market price for the raisins that they did not separate for account of the government (reserve). In defense of this fine, the Hornes claimed a governmental taking.

After years of administrative review, the Ninth Circuit was to decide whether the government’s taking of reserve raisins under the RMO resulted in a per se taking. However, the Ninth Circuit determined that the RMO cannot be analyzed under the physical per se taking analysis for the reserved raisins, but rather by the Nollan/Dolan  “essential nexus and rough proportionality” test. The Court subsequently held that the RMO did satisfy the test, and thus was not a regulatory taking under the Fifth Amendment.

In holding that Nollan/Dolan applied to the RMO, the Ninth Circuit extended this test to non-land use cases, thus creating a conflict with the Supreme Court’s takings precedence of the last forty years. In addition, the Ninth Circuit held that per se takings could only apply to real property, rather than both real and personal property, an issue not to be discussed here. The current issues presented to the Supreme Court are: (1) whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” Arkansas Game Fish Comm’n v. United States, 113 S. Ct. 511, 518 (2012) applies to only real property and not personal property; (2) whether the government may avoid the categorical duty to pay just compensation for the physical taking of property by reserving to the property owner a contingent interest in portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

What is missing entirely from this question is the most logical test, the Penn Central balancing test. It is difficult to argue a per se taking on the level of Loretto and Lucas due to their narrow construction. Loretto applies when there is a “permanent physical invasion” no matter how minor. Lucas applies when a regulation denies a property owner of all economically viable use of his or her land. Here, handlers set aside a predetermined percentage of raisins and the overage is released to the free market. The government has never required 100% of the raisins in any one year.

In finding that a per se analysis cannot be used, the Ninth Circuit used the Nollan/Dolan balancing test for land use forced exactions. However, this line of reasoning is clearly inappropriate for the Hornes case. The Supreme Court in Lingle stated both Nollan and Dolan involve Fifth Amendment takings challenges to adjudicative land use exactions, specifically, government demands that a landowner dedicate an easement to the permitting agency. This was further stated in Koontz, when the Court held that “[Nollan and Dolan] provide important protection against the misuse of the power of land use regulation.”

With three types of cases analyzed, the Penn Central balancing test remains. The Hornes intentionally did not argue Penn Central, most likely because the outcome would not be favorable to them. However, we know that when government regulations impact some strands of the “bundle of property rights”, and the owner retains important interests, the Penn Central balancing test can be used. The Penn Central balancing test requires the court to take into consideration the character of the governmental action, the economic impact of the regulation on the claimant, and the extent to which the regulation has interfered with a distinct investment backed expectation. Unfortunately for the Hornes, a ‘taking’ is more readily found when the interference with property can be characterized as a physical invasion by the government, rather than a public program that adjusts benefits and burdens to promote the common good.

The Hornes will have difficulty proving the RMO is so severe, if the program is meant to stabilize prices and help handlers receive a profit. The RMO mitigates the economic fluctuations on all involved, benefiting the Hornes and other handlers. As for the investment-backed expectations, the finding of a taking relies on the purchaser’s notice and awareness of the regulation. Although the notice is not an automatic bar, it plays a significant role in the analysis. Here, not only did the Hornes know about the RMO, they intentionally took it upon themselves to change the system and wait for a reaction while they were making a substantial profit over other handlers. Finally, when weighing the final Penn Central factor, the RMO has stabilized the market for the past seventy years. The RMO keeps the raisin handlers at a competitive, but fair level. Even if the Hornes were upset with this system, they could have sought out other administrative remedies.

It will be interesting to see what the Court decides. On one hand, the Justices will have to decide the issues on appeal, such as the application of per se takings on personal properties and whether Nollan/Dolan can apply to cases outside of land use exactions. On the other hand, the Court is making this decision on bad facts. The Hornes were not acting as a traditional handler, instead they created their own system. Should an almost eighty year old marketing order be rewritten just because of this family? It is not for the Court to determine, but rather Congress, who has the power to rewrite the statute.

On Wednesday April 1, 2015, Pace University Law School had the honor of hosting Robin Kundis Craig as the keynote speaker of the 21th Annual Lloyd K. Garrison Lecture on Environmental Law. Ms. Craig is a leading environmental law scholar and author of The Clean Water Act and the Constitution (Environmental Law Institute 2004), Environmental Law in Context (West 2005), and over fifty law review articles on water and coastal issues. After graduating with a Ph.D in English Literature from U.C. Santa Barbara, Ms. Craig attended Lewis & Clark School of Law, where she graduated summa cum laude and first in her class. She taught previously at Lewis & Clark School of Law; Western New England College School of Law; Indiana University-Indianapolis School of Law; and the Florida State University College of Law and is currently the William H. Leary professor of law at University of Utah S.J. Quinney College of Law where her teaching focuses on Property, Environmental Law, Ocean & Coastal Law, Administrative Law, Water Law, Toxic Torts, and Civil Procedure. Ms. Craig is also very active with the American Bar Association’s Section on Environment, Energy, and Resources, where she recently completed a three-year term on the Executive Council and where she currently serves as Co-Chair of the Water Resource Committee, on the Planning Committee for the 43rd Annual Spring Conference on Environmental Law, as Vice Chair for the 2014 Water Law Conference, and as the designated Chair of the 2015 Water Law Conference.

 

 

While her credentials are exceptional, her lecture was similarly impressive. Titled “Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking,” the lecture focused on how humans think and cope with change (in this case climate change) through the use of different narratives. Ms. Craig used the tale of the trickster, a mythological creature who is known for its intelligence as well as its ability to bring chaos through its mischievous and “trickster” ways. By using the trickster as the model, she explained that the current narratives about combating climate change need to change from ones in which humans try to control that which is uncertain, to narratives about learning to live with chaos—as many societies in ancient stories and folklore learned to do while living with the trickster.

 

Ms. Craig offered an informative historical look at U.S. Environmental Policy, which she called the “Humans as Controlling Engineers” narrative. This narrative focused on human’ desire to try and conquer nature or, as she so eloquently put it, humans’ belief that if we created the environmental problems, then we can just as easily fix them through technology and other controls. Yet, as Ms. Craig explained, this belief in the “Humans as Controlling Engineers” does not fit into the reality of how nature works, and many times the consequences of our actions are hard to predict due to complex feed back loops. Nature is not a system that tries to stabilize itself after change, but rather one that is continually in a state of motion and evolution.

 

The second half of the lecture focused on examining what she described as the four narratives that people currently fall into when it comes to discussing climate change. The first narrative that people fall into is denying that climate change is happening. The second narrative maintains that if climate change does exist, it’s not because of us. The third narrative involves people who believe that technology will be the solution to our problems, and the fourth concerns those who have overly accepted climate change and believe that it’s going to lead to the end of the world as we know it. All four narratives have their own drawbacks, but this is where the trickster model comes in. It gives us a way of dealing with and living with long-term climate change. Once humans can get to the point of accepting the unexpected and incorporating it into our lives, we can step outside our current narrative as “controlling engineers.”

 

The lecture concluded with a short question and answer session.  Many of the questions asked by professors concerned how Ms. Craig thought they should be talking about climate change with their students and how the students should seek to tackle this issue in the legal framework.  While such questions do not have easy answers, Ms. Craig stressed the importance of having a strong precautionary principle and the need for strengthening current laws that reduce stresses on our eco-systems. Most importantly, Ms. Craig pointed to the need for positivity that encourages people to understand that while we may not be able to control the impact of climate change the way we want, there are things we can do to help make our lives living with climate change better.

“A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole.”

-Matter of Wallach v. Town of Dryden

 

This blog post is a preview of the upcoming student case note, “Frack Attack: the Post-Dryden Battleground and How Local Governments Can Join the Anti-Fracking Fray.” The note examines the June 30, 2014 Court of Appeals of New York case Matter of Wallach v. Town of Dryden, which upheld a municipality’s home rule authority to use zoning to ban the controversial natural gas extraction process known as hydrofracking. This decision has far-reaching impacts for New York municipalities. In addition, the decision has been echoed by Governor Cuomo’s administration announcement that fracking is now banned in New York State as of December 17, 2014 because of the rampant concerns over possible health risks, ending the many years of debate over the previous moratorium.

 

A highly contentious process, fracking is essentially gas exploration that uses pressure, sand, and chemically infused water to create fissures in deep underground shale formations that allow oil and natural gas to flow. While conventional fracking—i.e. vertical drilling—is a relatively old technology that has been used for at least 60 years in the United States, horizontal fracking is a much newer technology. It relies on the ability to turn a downward-plodding drill bit as much as 90 degrees to continue drilling parallel to the Earth’s surface for thousands of feet. This added capacity has led to the recent explosion of natural gas production in the United States, in addition to numerous reports about fracking—and the estimated 827 trillion cubic feet of gas available—being the answer to our energy prayers.

 

However, there are numerous concerns surrounding the safety of this drilling technique, as many in the environmental community have jumpstarted the issue by accusing fracking of threatening our drinking water supplies. These trepidations more specifically include: massive water depletion and pollution; air pollution and dust; visual blight and noise; habit fragmentation; increased soil erosion and sedimentation; surges in truck traffic; overwhelming of local services and infrastructure such as waste treatment and disposal; and decreased property values. In addition, while less certain to occur, other situations may result from fracking, including possible natural gas leaks and escaped methane and volatile organic compounds, and increased ground-level ozone, which may exacerbate the effects of the climate change phenomenon. Arguably the most contested effect, drilling companies dispose of the massive amounts of wastewater (i.e. “flowback”) needed to frack via deep well injection: the deposit of toxic brine waste under extreme pressure in wells thousands of feet below the Earth’s surface. At best, underground deep well injection pollutes groundwater aquifers; at worst, science has currently linked the process to an increased risk of earthquakes, especially if the geology of the area is not conducive to fracking in general. As can be expected, there are also numerous positive impacts of fracking, including increased domestic revenue, employment opportunities, and other local short-term economic benefits.

 

While the process certainly has the potential to endanger our entire nation’s human health and environment, municipalities are at the forefront of the battle lines. Because geographical access to shale formations is mainly a local, rather than national or even state-wide issue, drilling companies naturally seek out individual municipalities—as well as individual landowners in said municipalities—in order to create drilling contracts.  Municipalities are the ones who will have to deal with any potential adverse effects of fracking. Moreover, municipalities themselves have to weigh these numerous deleterious effects with the potential short-term economic boom that will benefit their communities—a decision that has added implication for municipalities in need of economic revitalization. Balancing these concerns, it is clear that it is municipalities that have the ability to use their police power to mitigate adverse impacts to protect local health, safety, and welfare interests. Local governments can accomplish this through comprehensive planning, zoning, subdivision and site plan regulations, and negotiations as well as non-regulatory agreements with the private sector.

 

This is why the Dryden decision has far-reaching future impacts for the state of New York—even in the face of the statewide ban. If the trend of municipalities zoning out fracking, or at least regulating its effects on a local level, accelerates, local governments will possess the majority of power in the anti-fracking fight. Part of the battle for municipalities who attempt to regulate fracking is overcoming the presumption that the process must already be regulated at the federal level. One would assume that the numerous federal laws enacted to safeguard our environment would deal with such an obtrusive drilling process with myriad known adverse environmental and public health impacts. However, this presumption is entirely inaccurate. Fracking is only regulated marginally through six of the federal environmental laws: the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Resources and Conservation Recovery Act (RCRA), the Clean Air Act (CAA), the Comprehensive Environmental Response Compensation Act (CERCLA), the Toxic Substances Control Act (TSCA), and the Endangered Species Act (ESA).None of these acts put significant regulations on the fracking process. State regulation fares little better. States mainly focus on regulations at the drilling stage itself, such as requiring casing of the wells and blowout prevention equipment. This missing link in federal and statewide regulation represents an opportunity for municipalities to mitigate the fracking risks they find most bothersome, while still allowing for oil and gas drilling within their jurisdictions.

 

For example, New York municipalities wishing to regulate fracking can take note of best practice examples from around the country. This case note focuses on fracking ordinances from: Sante Fe County, New Mexico; Flower Mound, Texas; and Oklahoma City, Oklahoma. Comparisons among these regulatory ordinances are important for municipalities who may not wish to enact “mini-moratoria,” or when local governments attempt to entirely ban fracking within their jurisdiction. Dryden itself utilized an incompatible uses argument to achieve an overarching, blanket ban on fracking: the Town believed that this heavy industrial activity merely was not compatible with its rural nature. Other municipalities may wish to allow fracking, but mitigate specific risks within the area, such as concerns about groundwater contamination or potential nuisance claims. Therefore, looking at other examples from around the country will aid a municipality to choose what regulations are most important to its citizens to produce the safest drilling possible.

 

It is clear that New York’s current fracking ban could eventually be overturned with a regime change. Therefore, it is important that statewide local governments be proactive, take inventory of local thoughts on fracking, and institute any regulations they deem appropriate. Local governments in New York are fortunate to possess home rule authority—some other states are not as lucky. Following Dryden’s example and banning fracking entirely based upon this authority may not be the correct path for every local government, but having the ability to do so showcases how much power New York municipalities have in the fracking arena. By handcrafting their regulations to account for local concerns about the environment and the public health, safety, and general welfare of their inhabitants, New York municipalities can effectively choose what side of the post-Dryden fracking war they fall upon. It is merely up to these local governments to draw battle lines within their borders.

And just like that, the Competition is over!  The Semifinal Round began at nine o’clock, with nine teams competing to advance to the Competition’s Final Round.  Three teams argued in three rooms, and the winning team from each room advanced to the afternoon’s finals.  Semifinal Round attorney-judges had difficulty determining the winners in each room – the competition was fierce!  Nevertheless, three teams were chosen.

The University of Mississippi School of Law, Vermont Law School, and the University of Montana School of Law, listed in no particular order, each advanced to NELMCC 2015’s final round.  The announcement was made to the competitors midday, after each of the nine Semifinal Round teams sat for a catered three-course lunch.  The three finalists made an hour to prepare their final arguments.

On behalf of the NELMCC Board, we would, again, like to thank the three Final Round judges for dedicating their time to the Competition and joining us and the competitors in this experience.  We were fortunate to have the following judges:

  • The Honorable Patricia Wald, Retired Chief Judge of the U.S. Court of Appeals for the D.C. Circuit,
  • The Honorable Barbara Gunning, United States Environmental Protection Agency Administrative Law Judge, and
  • The Honorable Malachy E. Mannion, Judge for the United States District Court, Middle District of Pennsylvania (Pace Law alum!)

The final round began just after 1:30pm, in front of an audience of students, professors, and alumni, among others.  The Judicial Institute Lecture Hall provided a regal setting for the main event.  The problem, which was written by Pace’s own Professor Karl Coplan, involved primarily issues related to the Clean Water Act and the Resource and Conservation Recovery Act, although the Public Trust Doctrine, Fourth Amendment Searches and Seizures, and common law torts were also discussed.  Lead by the Honorable Patricia Wald, the bench was hot.  Competitors were confronted with complex questions, innovative hypotheticals, and almost no softballs.  After deliberating in the “robing room,” the Final Round Judges returned to the Lecture Hall and offered each of the competitors a combination of constructive criticism and great praise.

And without further ado…

The winner of the 2015 Jeffrey G. Miller Pace National Environmental Law Moot Court Competition is The University of Mississippi School of Law, John Juricich and Mary Margaret Roark.

Congratulations to the winner as well as the Final Round Teams! Congratulations, also, to each of the sixty-two teams that competed in this year’s competition! It truly was a success; the competitors impress us year after year!

For more information about this year’s competition, including the names of all the teams that competed, advanced to the Quarter and Semifinal rounds, as well as the best brief and best oralist awards, visit http://law.pace.edu/jeffrey-g-miller-pace-national-environmental-law-moot-court-competition.

 

–Diana Neeves, NELMCC Chair 2015

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