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Professor Ann Powers:

Two Pace students, Ann Bermont (’14) and Anthony Papetti (’14), were among those responding to a request by the International Union for the Conservation of Nature (IUCN) for assistance  preparing briefing materials for IUCN’s oral presentation in a case before the International Tribunal on the Law of the Sea (ITLOS). Case #21 Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) involves the rights and obligations of coastal states in managing fisheries and preventing illegal fishing. It will be heard by the Tribunal in September in Hamburg.

Professor Ann Powers:

For those of you interested in the UN’s process for establishing Sustainable Development Goals as mandated by Rio+20, the Open Working Group approved its  “Outcome Document” on Saturday after a final week-long session.   It will be taken up by the General Assembly in the fall.

http://sustainabledevelopment.un.org/focussdgs.html

There are separate goals on water, energy, climate, oceans and terrestrial ecosystems.   The document was drafted by the co-chairs of the Working Group, with input from states, NGOs, IGOs and other stakeholders through many meetings and iterations.   Scores of states were active participants throughout the process and the galleries were often packed with civil society representatives.  If you have ever tried to draft a document in a committee, then imagine it multiplied by orders of magnitude.  It was often painful to watch, often boring, but the final document reflects a global general consensus of what must be done post 2015.  There are still contentious items, such as climate and some of the implementation issues, and the General Assembly may make changes, but just getting this far should be counted as an achievement.

Ann Powers

Associate Professor of Law

Pace Law School

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Professor Ann Powers from the IUCN Academy of Environmental Law Colloquium in Tarragona:

Although an extensive range of energy topics are being covered, the Colloquium has focused primarily on terrestrial activities and has provided only limited discussion opportunities for those whose primary interests are the health and protection of our oceans and coastal waters.  The first occasion came Wednesday in a workshop which dealt with the well-recognized impacts, actual and threatened, of oil production in and transportation on water.  Highlighted were the issues raised by potential oil production in major new fields off the coast of Brazil. Also of special relevance was an examination of offshore oil and gas exploration in the Arctic, with a proposal by the speaker for specific actions by the European Union.  A workshop scheduled for Thursday on the issues faced by developing countries, particularly small island developing states, was cancelled when speakers were unable to attend the conference, but resulted in a small group discussion of the role of SIDS in the climate debate, and a case study of a developed island state, Singapore.

On Friday then, the workshop on the Marine Environment, Renewable Energy and Governance, drew and appreciative audience of oceans and coasts professors, who applauded excellent presentations on building the blue economy, international law and governance related to energy, and marine spatial planning.   While we are unlikely to see renewable energy development in areas beyond national jurisdiction anytime in the near future, there are already numerous wind, wave, and tidal projects in national waters around the globe which present potential environmental concerns.

Following the workshop, the IUCN/WCEL Specialists Group on Oceans, Coasts and Coral Reefs met to consider projects and activities for the next year.  It was decided to focus on renewable energy in the marine environment, with the intention or raising the profile of the issue both in the work of IUCN and in general.

Pictured: Professor David Cassuto discussing water allocation law.

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After two days of workshops and side events focused on teaching and research, the 12th IUCNAEL Colloquium opened officially Wednesday with remarks and greetings from a number of IUCN officials, academic hosts, and local and international dignitaries.  Participants then moved on to the individual breakout sessions that will fill much of the rest of the week.  With energy as the overall organizing theme, and sustainable development as a subtext, attendees are offered a rich array of panels and presentations, covering important aspects of energy production, use and control. 

Pace is well-represented at the conference by faculty, students and alumni.  In  addition to Professors Cassuto, Ottinger, Powers and Rabago, the Pace delegation includes John Bowie, JD’14, and Cayleigh Eckhart, JD’15.  Also in attendance are alums Elaine Hsiao, LLM’10, who gave a presentation in the session on Universal Energy Access, Environmental Governance, and Democratic Participation;  and Widener Professor Jim May, LLM’91, and University of Witwatersrand Professor Tumai Murombo, LLM’06, who joined research panels on hydraulic fracking.  Other Pace representatives, including NYU (Abu Dhabi) Professor Shakeel Kazmi, SJD’12, are scheduled in the next two days.

We are also happy to have time to connect with  former Environmental Program Director Lee Paddock, now at George Washington, and former Energy and Climate Center Director Jamie Van Nostrand, LLM’11, currently at West Virginia University.

Read the abstracts, papers, and presentations from the IUCNAEL Colloquium.

Pictured: Dean Emeritus Richard Ottinger and John Bowie presented a paper on “Innovative Financing for Renewable Energy.”

Ottinger_Bowie_Presentation_IUCNAEL_2104

Submitted by John R. Nolon, Professor of Law, Pace Law School, Counsel to the Land Use Law Center, and Adjunct Professor of Land Use Law and Policy at the Yale School of Forestry and Environmental Studies.

In February, I posted a blog on Pace Law School’s GreenLaw site defining a land use climate change bubble. I noted that real estate prices in many parts of the country are beginning to fall due to the real and perceived effects of climate change on land use. What is happening, I posited, is an indication that a variety of climate bubbles are forming in vulnerable areas and that the evidence is visible on the land; let’s call this a nation-wide profusion of “reverse land use climate change bubbles.”

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By Daniel E. Estrin
Adjunct Professor of Law, Pace Law School
Supervising Attorney, Pace Environmental Litigation Clinic

A very important public trust decision was issued yesterday by the New York State Court of Appeals in a case brought by the Pace Environmental Litigation Clinic’s good friends and allies at the Super Law Group. New York State’s highest court ruled in Capruso v. Village of Kings Point that legislatively unauthorized “non-park” uses of public parkland by municipalities are continuing wrongs that can be challenged at any time by the public or the state, and that statute of limitations and laches defenses may not be asserted by municipalities to block efforts to enjoin such violations of the Public Trust Doctrine.  This ruling applies even where the municipal misuse of parkland has been ongoing for decades.

Why is this decision so significant?  Because decisions by municipalities to misuse public parkland (i.e., to use parkland for purposes other than public recreation without state legislative approval) are often made in secret between municipal agencies, with no notice to the public.  Moreover, even where such misuses of parkland may be deemed evident to park users, as the Court of Appeals noted, it is “unreasonable to expect ordinary citizens who use . . . parks to know whether a particular use by a municipality has received approval by the State Legislature and whether municipal infrastructure located on parkland is intended to serve the park or public areas outside of the park.” This critical ruling will likely cause New York municipalities to think more deliberately before they decide to invest public funds in projects that could much later be found not to constitute park uses.

Our Clinic regularly utilizes the Public Trust Doctrine to protect parkland and other natural resources.  Most recently, we blocked a proposal by the City of New York to use 20 acres of Spring Creek Park in Brooklyn as a solid waste management facility and stopped the City of Poughkeepsie from leasing all of the public dock space in Waryas Park to a for-profit tour boat company.  We salute the efforts of the Petitioners and their counsel in this case to protect nonrenewable natural and public resources, with an extra tip of our hats to Attorney General Eric Schneiderman and Assistant Solicitor General Bethany Davis Noll for their public interest advocacy and excellent work on the companion appeal.

If any readers are interested in the applicability of the Public Trust Doctrine to municipal parkland under New York law, we strongly recommend the excellent Handbook on the Alienation and Conversion of Municipal Parkland in New York, published by the New York State Office of Parks, Recreation and Historic Preservation.

By: Christopher Halfnight, MEM Candidate, Yale School of Forestry & Environmental Studies

Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities.  Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.

Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level.  As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts.  The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development.  With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.

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Esopus Creek at the Shandaken Tunnel Outlet

This is a post for Ad-law geeks. The Pace Environmental Litigation Clinic just won its case challenging the EPA Water Transfer Rule on behalf of Trout Unlimited, Waterkeeper Alliance and Hudson Riverkeeper. The Clinic has been representing Trout Unlimited on this issue for well over a decade, since 2000 when the Clinic commenced litigation seeking to force  New York City mitigate the impacts of warm, turbid water from the Shandaken Tunnel (part of the New York City water supply system) on the fabled Esopus Creek trout fishery.
The very thorough opinion by Judge Kenneth Karas of the Southern District of New York is here:  20140328 WTR – Order granting summary judgment & vacating EPA WTR   In the Water Transfer Rule, EPA tried to exempt transfers of polluted water between water bodies from the permitting requirements of the Clean Water Act.   EPA claimed that no “addition” under the statute took place when pollutants in water were transferred from one place to another.  Under Chevron v NRDC, a court reviewing an agency legal interpretation must first determine whether the underlying statute unambiguously resolves the question (in which case the court must enforce the statute).  If the statute does not resolve the question, the court proceeds to Chevron Step II — a determination whether the agency interpretation resolving the ambiguity is “permissible.”    Since the Clinic had already won a ruling from the Second Circuit (twice) that the plain language of the Clean Water Act unambiguously required permits for such transfers, and that any other result would be “absurd,” we argued that the Water Transfer Rule failed Chevron Step I — that the language and history of the Clean Water Act left no ambiguity that water transfers require permits. Surprisingly, Judge Karas’s of the Southern District of New York found sufficient ambiguity in the Clean Water Act to proceed to Chevron Step II — the question of whether EPA’s resolution of the ambiguity was permissible.
Judge Karas’s analysis is probably the the most thorough consideration of how to apply Chevron Step II — the question whether EPA’s resolution of ambiguity in the statute is “permissible.”  Judge Karas points out that this analysis is not pro-forma — just because the statute is ambiguous does not mean that any resolution of the ambiguity is necessarily permissible. The agency can’t act arbitrarily, and must still consider the relevant factors and provide a reasoned basis for its decision, which EPA did not do here. Judge Karas faulted EPA for failing to provide any reason for favoring the interests of water management agencies over the interests of preserving water quality. And Judge Karas also found that EPA’s resolution of perceived statutory ambiguity was impermissible because it created irreconcilable conflicts with settled understandings of other terms of the Clean Water Act — particularly the section 404 permitting requirement for discharge of dredged material and the understanding of the term “waters of the United States” to refer to bodies of water, not physical water in pipes.   Judge Karas held that water in pipes cannot be a “navigable water” under the statute.  This latter point was the one point of agreement among members of the Supreme Court in the Rapanos case.

Judge Karas vacated the Water Transfers Rule and remanded it to EPA for reconsideration.  Let us hope that EPA, at least, reconsiders the rule rather than continue its decades long fight against water quality on this particular issue.

Under the Public Trust doctrine, navigable waters are held in an inalienable trust by State government.  Members of the public have a right to transit by boat on  waters susceptible to navigation.  This is true even where both shorelines are under private ownership, and even where the lands under the water are held in private ownership.  North Carolina has recognized right of navigation even for manmade canals, in a case called Fish House, Inc. v. Clarke.

In the continuing saga of the North Carolina Waterkeepers efforts to expose and remediate the release of toxic coal ash from Duke Energy ash dump ponds throughout the state, Cape Fear  Riverkeeper Kemp Burdette, Waterkeeper Coal Coordinator Donna Lisenby, and Waterkeeper Staff Attorney Pete Harrison  (a Pace Environmental Litigation Clinic alum) drove a jon boat up a canal connected to the Cape Fear river to investigate the ongoing coal ash leaks.  Watch this confrontation between Pete and the local sheriff’s deputy in this segment from the Rachel Maddow show:

Rachel Maddow on Duke Energy Coal Ash Ponds

When the deputy tells Pete to go get off the navigable canal and not came back, or Fish and Wildlife would “scratch them a ticket,” because the lands and the canal belong to Duke Power, Pete points out that the water belongs to everyone.

After the incident, North Carolina attorney Bob Epting, who has been working with the North Carolina Waterkeepers on these efforts, wrote the following letter to Sheriff Webster (who has been a supporter of efforts to clean up North Carolina’s waters) to remind the Sheriff’s office of the public’s navigation rights.  I am reproducing the entirety of this wonderful assertion of public trust principles here (with Bob’s permissions):

 

 Dear Sheriff Webster,

On March 13, Deputy Telkey encountered several representatives of the Riverkeepers, an organization I am interested in both as a supporter and as an environmental lawyer.

The Riverkeepers, including the Cape Fear Riverkeeper, were in a small flatboat on the public waters of the State of North Carolina, on a waterway flowing into the Cape Fear River from the Duke Energy coal-fired power plant near Moncure. They were there to take samples of the River water near where Duke Energy was discovered two days earlier illegally discharging toxic wastewater from its coal ash pond into the waters of the State. No permit exists to allow such a discharge, and we believe the discharge, if willful and intentional, may be a criminal violation of the federal Clean Water Act, as well as various State statutes and regulations.

Deputy Telkey will verify that the Riverkeepers never set foot upon or otherwise entered upon the land owned by Duke Energy on either side of the waterway.

Nevertheless, Deputy Telkey, accompanied by Duke Energy employees, approached our Riverkeepers, who were in their boat on the navigable waters of the State, and from the riverbank, accused them of trespassing on the property of Duke Energy, asked them for their identification papers, and then told them they would be arrested if they returned by water to that site. Later, Deputy Telkey telephoned and repeated the warning, saying that Duke Energy wanted to be sure the Riverkeepers knew they were forbidden to return to that site on that stream, which is some forty or more feet wide, free-flowing, and clearly navigable, as shown by the travel of these men by motorboat up its course from the Cape Fear River.

I acknowledge that Duke Energy asserts that they own the land on each side of this navigable waterway, and that it asserts the right, arising from that ownership, to keep citizens off the waterway, where the Riverkeepers were engaged in serious work important to the health and welfare of the downstream communities, for whom the River is their primary drinking-water source.

On the other hand, I want you and Deputy Telkey to know that I am of the opinion, contrary to Duke’s assertion, that every citizen of the State has legal access including the right to be on and use that stream, which is a part of the “navigable waters of the State.” I know that many, many citizens of Chatham County, and many other learned lawyers, share this opinion. If it were not so, the work of the Haw River Assembly, which you have enthusiastically supported over the years, would be greatly restricted. Knowing you and your public support and respect for the Haw, which flows together with the Deep to form the Cape Fear just upstream of this site,, I suspect that you understand that my opinion is correct.

Under these circumstances, as there are conflicting interpretations of the law, this may well be a legal question to be determined by the Courts.

In the meantime, please understand that, with all due respect, you and your deputies have no authority to order citizens to leave and not to return to use, enjoy, or navigate the waters of the State. It is the business of Judges to resolve such issues, after proceedings affording all the parties due process of law, to enter appropriate findings, conclusions and Orders.

Neither Deputies of the Sheriff’s Department, nor even the Sheriff himself, are vested with judicial authority, and you all should take care to refrain from and avoid being used by powerful corporate interests to enforce prohibitions that fly in the face of the law of this State and Nation.

(Consider what Aunt Bea would say, upon learning at the dinner table that Opie’s science project investigating a fish kill, had been terminated because a deputy threatened to arrest him for trespassing if he came back again to look for the source of the stuff he had actually seen the day before running into their favoirte fishing hole. Ask yourself, “WWAD?”)

If Duke Energy wishes to litigate these issues, we are prepared to meet them in such litigation, and in accordance with lawful process, and after procedural discovery is completed, to present ourselves and these issues to the Court for resolution.

We’d like very much to learn, for example, how long and in what quantities Duke employees have been illegally discharging toxic wastewater from this coal-ash pond into the River; what individual officers and employees of Duke Energy directed and approved such a course of action on Duke’s behalf; and whether as a matter of company policy such a course of action has been employed to empty or draw down coal ash ponds at any of Duke’s other other thirteen coal-fired plant sites in North Carolina.

One would suspect that Duke has made some calculations as to the cost-savings it would enjoy from simply dumping their waste from these toxic ponds directly into the River, as opposed to draining and treating this wastewater before it is discharged, as the law requires. We would enjoy the opportunity to question Duke officials about such calculations, and how they might affect Duke’s plan to charge its customers with the costs of cleaning up these toxic ash ponds.

Inded, the federal grand jury is investigating such questions right now as to the chronic toxic pollution seeping from Duke’s waste ponds, especially the accidental release from the Dan River plant. This was no accidental spill though at Moncure. This was an intentional, contining illegal discharge, and its particulars should be of interest to that grand jury. In this sense, Riverkeeper’s actions are in aid of a criminal investigation, and ought not be obstructed by Duke’s unsupported assertion that it has a right to prevent access to these waters of the State.

These questions are essential to being able to determine the extent of the harm caused by Duke Energy by these actions, and what course Duke Energy should be ordered to follow in order to minimize and mitigate the risk and harm it has caused to the public health and safety. This is what Riverkeepers do, in the usual course of their work. They are not terrorists. Rather, they do work that is even more crucial to the public interest in these days when government agencies have been robbed of their ability to do meaningful investigative and enforcement work.

We intend to keep on monitoring and speaking out, as stewards of the rivers, including that part of the Cape Fear that runs through Chatham County beside the Moncure plant. In this regard, we will continue to exercise our rights of access to the River, including its navigable tributaries

In the meantime, I want you to know that we believe and have told the Riverkeepers that the people of North Carolina own the public, navigable waters of the State, and that they have the right to be on, use, and protect the public, navigable waters of the State. We have also cautioned them to take care not to enter edjacent privately owned property,

Please understand that the Riverkeepers’ efforts to monitor and analyze the effects of Duke Energy’s willful, intentional, unpermitted, discharge of toxic wastewater into Cape Fear River are legal and may not be prohibited by the Chatham County Sheriff’s Department without some underlying judiicial Order. It is the business of the Courts, to say whether Duke Energy may prohibit these folks from using the navigable waters of the State to establish and monitor the effects of Duke’s illegal discharge of toxic wastewater into the Cape Fear River.

I know you sir, and I know that in your heart, you will want to support this work.

With kind regards,

Robert Epting
EPTING & HACKNEY
PO Drawer 1329
Chapel Hill, NC 27514

 

Here is the Sheriff’s response:

 

.Elaine,

Thanks for meeting me earlier today in reference to the interaction of my deputy, the Riverkeepers and Duke Energy staff last week.
As you know, on March 13, 2014, a deputy was dispatched to Duke Energy (Cape Fear Coal Plant) in Moncure reference a trespassing call.
The deputy dealt with several issues including, “are occupants in a boat, on canal waters, on private property, trespassing”?
My deputy having limited information at hand – made a decision that in his opinion harmed neither side and kept the peace.
Since then we consulted with Jep Rose – the County Attorney about conflicting interpretations of property rights and water rights.
At this point in time with the information currently available, Mr. Rose has advised us to consider the canal waters to be a publicly navigable waterway. Again, thank you for meeting with me this afternoon and I appreciate your friendship and working relationship.

Sincerely,

Sheriff Richard. H. Webster
Chatham County Sheriff’s Office

 

Somewhere in heaven, Joe Sax is smiling.

Newly released e-mails show that when Duke Energy received notice that several citizens groups (including Waterkeeper Alliance and several North Carolina Waterkeeper organizations) were planning to sue it for Clean Water Act violations at its coal ash “storage” ponds, it started active negotiations with the North Carolina Departmnent of Environmental and Natural Resources.  These negotiations were aimed to thwart citizen enforcement and avoid taking remedial measures. Basically, as too often occurs when citizens discover ongoing violations that the environmental agencies would prefer to leave unenforced, the violator and the state environmental agency conspire to have the state commence a sham enforcement action in state court on the 59th day after notice. The State agency and the violator then propose a settlement of the case for nominal fines (often on the same day as the suit is filed) and the violator asserts that the collusive State enforcement action constitutes “diligent prosecution” that precludes citizen enforcement under Clean Water Act section 505.

These collaborative “diligent” prosecutions have a long and sordid history – in one of the more blatant cases, from South Carolina, the defendant’s lawyers actually filed the State enforcement action and paid the filing fee on behalf of the State. Friends of the Earth v. Laidlaw Environmental Services, 956 F. Supp. 588 (DSC 1997). I had thought there was an ethical rule against filing a lawsuit against your own client, but apparently in addition to the exception for a suit to collect your own fee, there is an exception for sham lawsuits in which the client is an eager defendant.

In the Duke Energy cases, not only did the State DENR and Duke Energy’s lawyers collaborate on the State enforcement actions, they also developed strategies to try and stop the citizen groups from intervening and being heard in the State court enforcement action. EPA Regulations provide that in order for a State to administer a delegated National Pollutant Discharge Elimination System permitting program, it must commit to “Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation.”  This condition of federal delegation did not phase the NC DENR.

The State Court ultimately thwarted DENR’s and Duke’s efforts, allowed the citizen groups to intervene, and denied entry of the proposed $90,000 settlement.   The case has become a major embarrassment for the State, as the exact environmental hazard the citizens groups were seeking to remedy – environmentally unsound long term disposal of coal ash wastes from power plants – has become the latest environmental disaster for the southeast, with a spill of tens of thousands of tons of coal ash slurry into the Dan River. The spill has prompted a federal criminal investigation into the relationship between the NC DENR and Duke Energy.

It is one thing when regulators fail to enforce environmental laws based on agency enforcement priorities or lack of resources. It is quite another when the same agencies expend their resources actively to thwart effective citizen enforcement. The environmental “protection” agencies all too often see their role instead as industry protection agencies – protecting industry from overeager citizen enforcement. This is not just a problem in the Carolinas – years ago, during the Pataki Administration, we learned that as soon as the New York State Department of Environmental Conservation saw that the Pace Environmental Litigation Clinic had filed public information requests for discharge monitoring reports from a series of municipal sewer treatment plants, an enforcement official at DEC circulated a memo recommending that DEC commence and immediately settle administrative enforcement actions against the plants in question as a way to prevent citizen enforcement.

One can only hope that the national embarrassment of environmental anti-enforcement in North Carolina will shame some environmental regulators to adopt a role of environmental defenses rather than industry defenders.

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