California has water issues. As a state, CA currently does not have enough water to meet all of our personal, agricultural, industrial, and recreational needs. We already import water from the Colorado River, and we have already drawn down our existing reservoirs in our underground aquifers to meet these needs. Probably none of this background comes as much of a surprise? Our water woes have been well-documented and publicized for decades, dating back to the days of Mulholland. The question is, what are we doing about it--and what does the future hold?
As I mentioned before, climate change has made predicting the future much more difficult. It used to be that historical models could be counted on to accurately predict what would happen in the future. Water planners have been able to rely on the concept of "stationarity": that you can use historical water flows to plan for future water availability. Sure, there have always been unusual events that happen once every 50 or 100 years, but our weather operated in a known range. This is no longer true. "Once in a lifetime" events now happen every 10 or 20 years. New and previously unforeseen events are occurring. We're in new territory, and although we have no crystal balls, we do have computer modeling. It allows us to make reasonable decisions on what might happen, and what is most likely to happen.
For example, the Department of Water Resources is expecting the water CA gets from the annual Sierra snowmelt to decrease by 25-40% in the next 50 years. Considering that this natural resource is an important source of water for CA in the late spring and summer months, DWR must decide not only how to replace this water supply, but also whether resources can/should be dedicated to capturing and retaining precipitation that may fall as rain (and quickly runs off) rather than slow-melting snow?
Further, what about sea-level rise? Sea levels have already risen over a foot in the last 50 years. They are expected to rise another foot by 2050. However, remember that slow but profound effect I mentioned before in the last post? Sea levels are projected to rise approximately 55 inches between 2050-2100! Imagine what this will do to low-lying areas such as Venice, Florida, New Orleans--and the Sacramento River delta. Literally thousands of acres of productive farmland could be inundated, and our existing levee system is currently not ready for sea-level rise of such magnitude. Further, salt water will encrouch up river many miles further inland, affecting fresh-water availability.
There are a few easy answers. For example, golf courses use (on average) over 300,000 gallons of fresh water a day. (Is the economic and/or recreational value of a golf course worth this cost in water resources?) We currently do very little with water recycling, and many of our reservoirs, pipelines, and other delivery systems are porous, leaky, or otherwise inefficient. We have made progress with low-flow shower heads and more efficient toilets. Much can still be done to improve our water infrastructure.
Unfortunately, although these answers will help, they will not begin to solve our water problems--especially for a state with a huge agricultural industry, and a population that is expected to increase another 10 million people by 2050. The good news, if there is good news, is that DWR is no longer using modeling based on historical averages, or wishful thinking. They're using the modern computer models to base their planning on the best science available, not history or hope. They have a hard task ahead, and unfortunately things may well get worse before they get better on this front. In the meantime--don't flush that toilet!
Monday, October 29, 2012
Climate Change 101
If you are reading this blog, or if you have listened to the news much in the past 20 years, you are probably already aware that there is a weather phenomenon known as Climate Change. Originally often referred to as Global Warming, climate change more accurately reflects the real-world consequence to humans.
As the planet warms, weather patterns become more severe. It may lead to hotter summers and drought. It may also lead to severe winter blizzards. Hurricanes, tornadoes and monsoons have more energy and are more frequent. In fact, the entire weather cycle has more energy overall, and all weather events become more pronounced.
Of course, depending on your source of news and your political leanings, you may not believe any of this is actually happening. Fortunately, most Americans, as with the vast majority of the world, now know something is amiss with our weather. The "controversy" over whether climate change is happening is largely a product of politics and fear-mongering. When 97% of the world's climate scientists agree with the U.S. Department of Defense, any practical debate of whether climate change is actually happening is essentially over. The debate still over WHY it is happening, how much of it is caused by humans and how much is naturally occurring, and what the consequences of this change will be is another story.
For long-term planning purposes including the investment of billions of dollars in infrastructure projects, we'd be crazy not to plan for certain known eventualities. Just as our military is making critical strategic decisions about how climate change will affect our ability to defend ourselves, our State and Federal planning boards must all make key decisions. Whether it is such projects as flood control in our rivers or coastal regions, planning and allocating water supplies, making improvements to our electrical grid, siting wind farms, protecting endangered or threatened species, locating crops, eradicating or minimizing the damage from agricultural pests, enacting fire suppression in our forests, or best determining how much CO2 can be released into the atmosphere, our governmental agencies must do their best to plan for effects that will not occur for twenty, fifty, perhaps even 100 years from now.
Modeling shows that the long-term effects of climate change have three very important components. First, they tend to be slow. Our planet is currently warmed from CO2 in the atmosphere that was released decades ago, and even if we stop burning fossil fuels today, the concentration of CO2 in the atmosphere will continue to rise for many years before the concentrations start to decrease. Second, these effects are profound. Although we cannot easily see them in our daily lives, the changes that have occurred over the last fifty years are dramatic. Whether it is the warming of the Earth as a whole, the dramatic warming of the North and South Pole, the migration of species to higher altitudes or different latitudes, the acidification of our oceans, coral reef bleaching, etc., the warming of our planet is affecting ecosystems world wide.
Perhaps the most important issue is that our computer modeling is imperfect. For example, 20 simulations of rainfall predicitions for California over the next 50 years may yield 1 result where California gets twice the rainfall that it has historically, 2 results where it gets less than half, and 17 results where CA gets 10-25% less. Which model is right? If you work for the Department of Water Resources, how do you plan your infrastructure projects? Does it make sense to plan for the worst-case scenario, or the scenario that is more statistically likely to happen? In this day of limited budgets and resources, can we afford to ignore the problem entirely, or just wish it away? In my next post, I will discuss some of the steps California is currently taking to prepare for its unknown water future.
As the planet warms, weather patterns become more severe. It may lead to hotter summers and drought. It may also lead to severe winter blizzards. Hurricanes, tornadoes and monsoons have more energy and are more frequent. In fact, the entire weather cycle has more energy overall, and all weather events become more pronounced.
Of course, depending on your source of news and your political leanings, you may not believe any of this is actually happening. Fortunately, most Americans, as with the vast majority of the world, now know something is amiss with our weather. The "controversy" over whether climate change is happening is largely a product of politics and fear-mongering. When 97% of the world's climate scientists agree with the U.S. Department of Defense, any practical debate of whether climate change is actually happening is essentially over. The debate still over WHY it is happening, how much of it is caused by humans and how much is naturally occurring, and what the consequences of this change will be is another story.
For long-term planning purposes including the investment of billions of dollars in infrastructure projects, we'd be crazy not to plan for certain known eventualities. Just as our military is making critical strategic decisions about how climate change will affect our ability to defend ourselves, our State and Federal planning boards must all make key decisions. Whether it is such projects as flood control in our rivers or coastal regions, planning and allocating water supplies, making improvements to our electrical grid, siting wind farms, protecting endangered or threatened species, locating crops, eradicating or minimizing the damage from agricultural pests, enacting fire suppression in our forests, or best determining how much CO2 can be released into the atmosphere, our governmental agencies must do their best to plan for effects that will not occur for twenty, fifty, perhaps even 100 years from now.
Modeling shows that the long-term effects of climate change have three very important components. First, they tend to be slow. Our planet is currently warmed from CO2 in the atmosphere that was released decades ago, and even if we stop burning fossil fuels today, the concentration of CO2 in the atmosphere will continue to rise for many years before the concentrations start to decrease. Second, these effects are profound. Although we cannot easily see them in our daily lives, the changes that have occurred over the last fifty years are dramatic. Whether it is the warming of the Earth as a whole, the dramatic warming of the North and South Pole, the migration of species to higher altitudes or different latitudes, the acidification of our oceans, coral reef bleaching, etc., the warming of our planet is affecting ecosystems world wide.
Perhaps the most important issue is that our computer modeling is imperfect. For example, 20 simulations of rainfall predicitions for California over the next 50 years may yield 1 result where California gets twice the rainfall that it has historically, 2 results where it gets less than half, and 17 results where CA gets 10-25% less. Which model is right? If you work for the Department of Water Resources, how do you plan your infrastructure projects? Does it make sense to plan for the worst-case scenario, or the scenario that is more statistically likely to happen? In this day of limited budgets and resources, can we afford to ignore the problem entirely, or just wish it away? In my next post, I will discuss some of the steps California is currently taking to prepare for its unknown water future.
Friday, October 26, 2012
Introduction to Food Law
The 2012 CA Bar Environmental Law Conference in Yosemite is in full swing, and I just had the pleasure of attending a session on food law. This is an up-and-coming area of the law, and you will probably be reading more posts from me on this. However, for now, I'll stick to the basics as many people are unfamiliar with this topic.
The production of the food we consume has changed dramatically over the last 100 years. Where a farmer used to produce enough food for 10 people, today a (U.S.) farmer can feed over 150! As the world's population has grown, these gains have allowed us to keep pace. This is important, as the world's population is expected to top 9 billion people by 2050. Also, these gains have allowed our society to become more urban, and for more people to focus on producing manufactured goods &/or providing services, but this "progress" hasn't been without a price.
First, let's consider the animals. Cows and chickens used to roam free, grazing on grass or hunting insects. Now, they're often raised in extremely close quarters. They may or may not live lives that even remotely resemble their ancestors--anything from what they eat to how they reproduce. Concentrated Animal Feeding Operations (CAFOs) may be rife with disease, leading to the use of antibiotics not only to keep the animals disease free, but also to fatten them up. It is estimated that 80% of all antibiotic use in the U.S. is for livestock, not humans. It is believed that the meat, eggs, and milk from these animals contains less nutrients and more pathogens than if the animals had been raised in a more "pastoral" setting. The disposal of waste from these operations can also be a huge issue, and sewage lagoon spills have wreaked havoc on nearby rivers.
The plants & crops being raised may also be less healthy. They are often grown in close proximity with more pesticides to prevent losses. These pesticides may be toxic, or (as in the case of methyl bromide, an ozone destroying gas), they may have other side effects. Significant amounts of fertilizer are also often used, resulting in the accumulation of nitrates and other chemicals in our rivers and aquifers. The large "dead zone" that occurs annually in the Mississippi River delta region of the Gulf of Mexico is a result of this overuse. Obviously this implicates both Clean Water and Safe Drinking Water issues.
Further, crops are being genetically engineered to make them more drought resistant, pest resistant, and/or to increase yields. While some of this engineering may ultimately prove to be harmless, there are concerns that we may not fully understand the consequences of such tinkering for years to come. Also, because this engineering goes beyond anything occurring naturally, companies have proprietary rights to these crops, and farmers may be subject to intellectual property claims.
I am not suggesting here, today, that any one farm, or any one company, has done something illegal or improper--although we know such things are currently occurring. The point of this post is to just give you an idea of the sorts of issues that farm law touches on. Environmental law and food law are inexorably entwined, especially in a state like California with such a large and diverse agricultural economy.
California has a special, perhaps even unique, opportunity to lead the world in this area of the law, and I am glad the CA Bar included this session in the 2012 Environmental Law Conference. I suspect that with issues such as Proposition 37 on the ballot, we will be hearing much more about this in the coming months and years.
The production of the food we consume has changed dramatically over the last 100 years. Where a farmer used to produce enough food for 10 people, today a (U.S.) farmer can feed over 150! As the world's population has grown, these gains have allowed us to keep pace. This is important, as the world's population is expected to top 9 billion people by 2050. Also, these gains have allowed our society to become more urban, and for more people to focus on producing manufactured goods &/or providing services, but this "progress" hasn't been without a price.
First, let's consider the animals. Cows and chickens used to roam free, grazing on grass or hunting insects. Now, they're often raised in extremely close quarters. They may or may not live lives that even remotely resemble their ancestors--anything from what they eat to how they reproduce. Concentrated Animal Feeding Operations (CAFOs) may be rife with disease, leading to the use of antibiotics not only to keep the animals disease free, but also to fatten them up. It is estimated that 80% of all antibiotic use in the U.S. is for livestock, not humans. It is believed that the meat, eggs, and milk from these animals contains less nutrients and more pathogens than if the animals had been raised in a more "pastoral" setting. The disposal of waste from these operations can also be a huge issue, and sewage lagoon spills have wreaked havoc on nearby rivers.
The plants & crops being raised may also be less healthy. They are often grown in close proximity with more pesticides to prevent losses. These pesticides may be toxic, or (as in the case of methyl bromide, an ozone destroying gas), they may have other side effects. Significant amounts of fertilizer are also often used, resulting in the accumulation of nitrates and other chemicals in our rivers and aquifers. The large "dead zone" that occurs annually in the Mississippi River delta region of the Gulf of Mexico is a result of this overuse. Obviously this implicates both Clean Water and Safe Drinking Water issues.
Further, crops are being genetically engineered to make them more drought resistant, pest resistant, and/or to increase yields. While some of this engineering may ultimately prove to be harmless, there are concerns that we may not fully understand the consequences of such tinkering for years to come. Also, because this engineering goes beyond anything occurring naturally, companies have proprietary rights to these crops, and farmers may be subject to intellectual property claims.
I am not suggesting here, today, that any one farm, or any one company, has done something illegal or improper--although we know such things are currently occurring. The point of this post is to just give you an idea of the sorts of issues that farm law touches on. Environmental law and food law are inexorably entwined, especially in a state like California with such a large and diverse agricultural economy.
California has a special, perhaps even unique, opportunity to lead the world in this area of the law, and I am glad the CA Bar included this session in the 2012 Environmental Law Conference. I suspect that with issues such as Proposition 37 on the ballot, we will be hearing much more about this in the coming months and years.
Wednesday, October 24, 2012
A Job vs Your Passion
A lot of people have asked me, "Why environmental law?" After all, there are many areas of the law where you can do good work. Certainly working to free the wrongfully convicted is very rewarding. I would imagine that helping the victims of domestic abuse is also worthwhile. I am sure that helping people obtain justice in medical malpractice cases, or when someone has been the victim of someone's negligence can make you feel good inside about the work you do.
We've all heard (or told) the various lawyer jokes. We're sharks. The first thing to do is, "kill all the lawyers." (Missing the context of Shakespeare's quote, of course). However, when you say that you are involved in protecting the environment not only for people alive today, but for future generations, often people tend to view you a little differently. That's nice, but is it the reason to choose environmental law as a career path?
In my opinion, no. If you love what you do, you have to love it for yourself--not because other people think it is nice. In fact, I sometimes think that in many ways it may be easier to work in a field that you're NOT passionate about. It is easier to "let go" at the end of the day, and focus on your wife, your kids, or whatever you have in your personal life that you also care about. Many people I know believe that this is the key to retaining your sanity.
Maybe they're right--but I've never wanted my life's work to be dedicated to topics that I am relatively ambivalent about. Now, I don't practice environmental law full-time--far from it! However, my love of the environment started young: surfing, skiing, and especially backpacking on the John Muir trail. This is some amazing scenery: Yosemite Valley & the Ansel Adams Wilderness. I realized that if I wanted to be able to enjoy these places, and if my kids, and their kids were also to enjoy them, then we needed to exhibit more stewardship. Too often our natural resources were liquidated for immediate returns without regard to their value to future generations.
So, when I had the opportunity, I returned to school. I felt that studying the law would be the best way for me to contribute to this world in a positive way. Maybe I would leave things a little better than I had found them--or hopefully at least no worse! Tomorrow the 2012 California Bar Environmental Law Conference starts in Yosemite. It's one of my favorite places on this Earth, and over the next several days I'm hoping to learn a bit more about how I can help.
We've all heard (or told) the various lawyer jokes. We're sharks. The first thing to do is, "kill all the lawyers." (Missing the context of Shakespeare's quote, of course). However, when you say that you are involved in protecting the environment not only for people alive today, but for future generations, often people tend to view you a little differently. That's nice, but is it the reason to choose environmental law as a career path?
In my opinion, no. If you love what you do, you have to love it for yourself--not because other people think it is nice. In fact, I sometimes think that in many ways it may be easier to work in a field that you're NOT passionate about. It is easier to "let go" at the end of the day, and focus on your wife, your kids, or whatever you have in your personal life that you also care about. Many people I know believe that this is the key to retaining your sanity.
Maybe they're right--but I've never wanted my life's work to be dedicated to topics that I am relatively ambivalent about. Now, I don't practice environmental law full-time--far from it! However, my love of the environment started young: surfing, skiing, and especially backpacking on the John Muir trail. This is some amazing scenery: Yosemite Valley & the Ansel Adams Wilderness. I realized that if I wanted to be able to enjoy these places, and if my kids, and their kids were also to enjoy them, then we needed to exhibit more stewardship. Too often our natural resources were liquidated for immediate returns without regard to their value to future generations.
So, when I had the opportunity, I returned to school. I felt that studying the law would be the best way for me to contribute to this world in a positive way. Maybe I would leave things a little better than I had found them--or hopefully at least no worse! Tomorrow the 2012 California Bar Environmental Law Conference starts in Yosemite. It's one of my favorite places on this Earth, and over the next several days I'm hoping to learn a bit more about how I can help.
Tuesday, October 23, 2012
Politics v Justice
Well, election season is on us, and the good folks of Ohio may well be the people to decide for the entire country whether Barack Obama or Mitt Romney is President. I'm not going to dedicate time here tonight to argue whether the Electoral College is still the best plan. Instead, I will spend a few minutes talking about when politics affect legal decisions.
Last month I was deeply involved in a murder trial. If you read some of my posts, you know that it ended in a hung jury, 10-2 in favor of acquittal. As of yet no decision has been made as to whether or not the defendant in this case will be re-tried. He is out on a much smaller bond, but his future is still in limbo. Will he have to defend himself again? Should he even have to?
This case has always been political in nature. The victim was the Superintendent of schools in a smallish town, that had seen its share of racial division and corruption. He was an outsider that had been brought in to "clean up" the town, and also implement Brown vs Board of Education, which was long overdue. He had his run-ins with the School Board, and they wanted him gone. He ended up dead less than 24 hrs before a controversial meeting was to take place,
The defendant, a 17 year old high school student at the time, had no connection to the victim, the Board, or even the community. His family had recently relocated there. Neither he, nor his parents, were part of these controversies. Yet, due to some circumstantial evidence that placed him near the scene of the crime at approximately the same time as the murder, he became a person of interest. He was investigated, and dropped as a suspect, twenty years ago.
The problem is that now there is a D.A. that is aggressively trying to clean up cold-cases. The defendant was asked to give a DNA sample, which he did. The State got an arrest warrant on the strength of a "DNA match." This so-called match not only proved later to not be a match, it tended to show that the defendant could NOT have been the killer.
Nevertheless, the D.A. pursued this case with a fervor. She fought to make sure the defendant's bail was unattainable ($1M), and insisted in taking this matter to trial even when the lab that suggested there could be a match came back with a report saying there was not one.
Why would someone do this? Well, it may just be a coincidence, but the D.A.'s name has made a lot of headlines with her high-profile prosecution of this and other cases. Oh, and she is up for re-election in a couple weeks.
Since the hung-jury, she has kept silent about the case, and has let the Assistant D.A. who was the lead here take all the criticism. As for whether or not the Defendant would be re-tried? No word. No one is expecting anything until after the election. If her challenger wins, everyone expects the case will be dropped. If she wins, she may re-try it? Who knows?
The sad thing is that the victim's family is no closer to justice than they were twenty years ago. The defendant--a real person, with a wife, with hopes for a family, with hopes for regaining his life--sits and waits. This is not justice, and justice should never have to be put on hold due to someone's political aspirations.
Last month I was deeply involved in a murder trial. If you read some of my posts, you know that it ended in a hung jury, 10-2 in favor of acquittal. As of yet no decision has been made as to whether or not the defendant in this case will be re-tried. He is out on a much smaller bond, but his future is still in limbo. Will he have to defend himself again? Should he even have to?
This case has always been political in nature. The victim was the Superintendent of schools in a smallish town, that had seen its share of racial division and corruption. He was an outsider that had been brought in to "clean up" the town, and also implement Brown vs Board of Education, which was long overdue. He had his run-ins with the School Board, and they wanted him gone. He ended up dead less than 24 hrs before a controversial meeting was to take place,
The defendant, a 17 year old high school student at the time, had no connection to the victim, the Board, or even the community. His family had recently relocated there. Neither he, nor his parents, were part of these controversies. Yet, due to some circumstantial evidence that placed him near the scene of the crime at approximately the same time as the murder, he became a person of interest. He was investigated, and dropped as a suspect, twenty years ago.
The problem is that now there is a D.A. that is aggressively trying to clean up cold-cases. The defendant was asked to give a DNA sample, which he did. The State got an arrest warrant on the strength of a "DNA match." This so-called match not only proved later to not be a match, it tended to show that the defendant could NOT have been the killer.
Nevertheless, the D.A. pursued this case with a fervor. She fought to make sure the defendant's bail was unattainable ($1M), and insisted in taking this matter to trial even when the lab that suggested there could be a match came back with a report saying there was not one.
Why would someone do this? Well, it may just be a coincidence, but the D.A.'s name has made a lot of headlines with her high-profile prosecution of this and other cases. Oh, and she is up for re-election in a couple weeks.
Since the hung-jury, she has kept silent about the case, and has let the Assistant D.A. who was the lead here take all the criticism. As for whether or not the Defendant would be re-tried? No word. No one is expecting anything until after the election. If her challenger wins, everyone expects the case will be dropped. If she wins, she may re-try it? Who knows?
The sad thing is that the victim's family is no closer to justice than they were twenty years ago. The defendant--a real person, with a wife, with hopes for a family, with hopes for regaining his life--sits and waits. This is not justice, and justice should never have to be put on hold due to someone's political aspirations.
Thursday, October 18, 2012
Of Bosques and Men
Today I am blogging not about the law per se, although I will touch on to that, or even about anything I am involved in directly. Today I am writing because I am proud of something my Dad did this week. Dad lives in Albuquerque now, and in his retirement he's gotten (even more) involved in local community issues.
According to their own website, it seems that Walmart has a dozen or so stores in and around Albuquerque. There is nothing inherently wrong with this. They are a retail chain, and they have as much right as anyone to build a store and see if they can make a profit selling their wares.
Bosque is the name given to areas of forest found along rivers, streams, and riparian flood plains in the Southwest. The Paseo del Bosque is Albuquerque's premier multi-use trail system. Dad got involved when Walmart sought to build a store on private land that is not only adjacent to this recreation area, but also to a local prep school also known as the Bosque school. This land lacked adequate access to major streets that could handle both the truck and car traffic expected from a "big box" store. As it turns out, Walmart's bid to develop here was denied primarily because of the access issue. In my opinion, all of these issues are good reason to deny the permit in a location such as this.
Understand, I recognize that we need jobs. We all need retail locations where we can buy our toothpaste, anti-freeze, &/or sunglasses. I just don't buy the argument that one always implicates the other. Here, there are Walmarts within a couple miles in either direction from this site, and there are other retailers available as well. People will continue to shop--either here, or at the other retailers that service this neighborhood. People shall not want for inexpensive goods simply because there isn't another Walmart here. If the Walmart is built, probably other stores will close. It is not as if people will now buy more goods because of the Walmart, they'll simply buy them from someone else.
However, this habitat adjacent to the Rio Grande is rare. Special. Locating a store here would degrade what little of it remains--and this loss cannot be easily mitigated. Further, many the kids being educated nearby also spoke against locating a big box store (of any type) so close to their school.
I applaud the Albuquerque City Council for rejecting this proposal. Perhaps the city or a non-profit organization needs to step in and acquire this land so that the private land owner does not suffer financially from this decision. This is only fair. Depending upon what the City ultimately does, or does not, ultimately let them do with their land could lead to a takings issue later on. If the people of Albuquerque do value the unique nature of this land, they should take steps to preserve it in perpetuity for future generations to enjoy,
There's plenty of room for the Home Depot's, Macy's, and Wal Mart's of the world. Let's be sure not to lose sight of the forest--and especially the forest itself--in the meantime. Dad, I'm proud of you for lending your voice to this cause!
According to their own website, it seems that Walmart has a dozen or so stores in and around Albuquerque. There is nothing inherently wrong with this. They are a retail chain, and they have as much right as anyone to build a store and see if they can make a profit selling their wares.
Bosque is the name given to areas of forest found along rivers, streams, and riparian flood plains in the Southwest. The Paseo del Bosque is Albuquerque's premier multi-use trail system. Dad got involved when Walmart sought to build a store on private land that is not only adjacent to this recreation area, but also to a local prep school also known as the Bosque school. This land lacked adequate access to major streets that could handle both the truck and car traffic expected from a "big box" store. As it turns out, Walmart's bid to develop here was denied primarily because of the access issue. In my opinion, all of these issues are good reason to deny the permit in a location such as this.
Understand, I recognize that we need jobs. We all need retail locations where we can buy our toothpaste, anti-freeze, &/or sunglasses. I just don't buy the argument that one always implicates the other. Here, there are Walmarts within a couple miles in either direction from this site, and there are other retailers available as well. People will continue to shop--either here, or at the other retailers that service this neighborhood. People shall not want for inexpensive goods simply because there isn't another Walmart here. If the Walmart is built, probably other stores will close. It is not as if people will now buy more goods because of the Walmart, they'll simply buy them from someone else.
However, this habitat adjacent to the Rio Grande is rare. Special. Locating a store here would degrade what little of it remains--and this loss cannot be easily mitigated. Further, many the kids being educated nearby also spoke against locating a big box store (of any type) so close to their school.
I applaud the Albuquerque City Council for rejecting this proposal. Perhaps the city or a non-profit organization needs to step in and acquire this land so that the private land owner does not suffer financially from this decision. This is only fair. Depending upon what the City ultimately does, or does not, ultimately let them do with their land could lead to a takings issue later on. If the people of Albuquerque do value the unique nature of this land, they should take steps to preserve it in perpetuity for future generations to enjoy,
There's plenty of room for the Home Depot's, Macy's, and Wal Mart's of the world. Let's be sure not to lose sight of the forest--and especially the forest itself--in the meantime. Dad, I'm proud of you for lending your voice to this cause!
Sunday, October 14, 2012
Changing Public Perceptions of Climate Change
A new study from the Yale Project on Climate Change Communication and George Mason University was just released last week. It appears that "a large and growing number of Americans" believe that global warming is affecting weather in the United States. This number is up 5% since March of 2012--from 69% to 74%.
Further, Americans were more likely to connect global warming to record high temperatures this summer, Americans said that climate change had made events such as the severe drought that struck the Midwest this summer worse, and Americans increasingly say that weather in the U.S. has been getting worse over the past several years.
I believe that too often laws and regulations are the result of politics, not sound science. Nevertheless, the public's willingness to accept or reject new environmental controls and standards strongly affects what laws/regulations may ultimately come to pass. Traditionally the American public has trailed other developed countries in accepting climate change as a real phenomenon. If public perception is indeed changing, we may be on the cusp of policy changes as well.
The report itself is far too long for this little blog. However, if you are interested in reading more:Click Here
Further, Americans were more likely to connect global warming to record high temperatures this summer, Americans said that climate change had made events such as the severe drought that struck the Midwest this summer worse, and Americans increasingly say that weather in the U.S. has been getting worse over the past several years.
I believe that too often laws and regulations are the result of politics, not sound science. Nevertheless, the public's willingness to accept or reject new environmental controls and standards strongly affects what laws/regulations may ultimately come to pass. Traditionally the American public has trailed other developed countries in accepting climate change as a real phenomenon. If public perception is indeed changing, we may be on the cusp of policy changes as well.
The report itself is far too long for this little blog. However, if you are interested in reading more:Click Here
Saturday, October 13, 2012
Supreme Court also Checks in on Clean Water
As I mentioned several days ago (October 8), environmental law is a favorite topic of mine, and the U.S. Supreme Court doesn't take that many environmental law cases. Well, a friend and colleague reminded me that the Supreme Court is taking a look at another important environmental law issue this term in the clean water realm.
On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.
In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.
Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.
A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.
Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.
On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.
In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.
Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.
A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.
Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.
Monday, October 8, 2012
Supreme Court Grants Cert on Exactions
Hi Everyone--
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
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