Tag: environmental law review syndicate

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

By Caitlin Brown Caitlin Brown is a 3L at Berkeley Law and Co-Editor in Chief of Ecology Law Quarterly.   This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website.  Introduction The National Park Service manages […]

Our Money Is Safe, But The Planet is Not: How The Carbon Bubble Will Cause Havoc For The Environment, But Not The Stock Market

Our Money Is Safe, But The Planet is Not: How The Carbon Bubble Will Cause Havoc For The Environment, But Not The Stock Market

By Breanna Hayes, Managing Editor, Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate. I. Introduction Human use of fossil fuels dates back to prehistoric times.[1]  Before the Industrial Revolution, humans mostly relied on wood, wind, and water as […]

The Importance of GIS in Emergency Management

The Importance of GIS in Emergency Management

By Monika Holser, UCLA School of Law, Class of 2018

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


GIS (geographic information system) is a computer system for “capturing, storing, checking, and displaying data related to positions on the Earth’s surface.”[1]  It allows multiple layers of information to be displayed at once, enabling one to visualize and understand relationships on a map.[2]  Different types of information can be overlaid in the program regardless of their original format or source.[3]  According to ESRI, GIS is described as the “go-to technology” for location-based decisions and is fundamental in understanding the current and future issues involving geographic space.[4]

The modern growth of geospatial technology positively interacts with, and influences all aspects of disaster management – such as mitigation (modeling hazards and vulnerability to develop strategies), preparedness (formulating emergency response and evacuation plans), response (executing such plans), and recovery (assessing damages, rebuilding, preventing recurrence, and educating the public).[5]  Considering we cannot prevent natural disasters, it is important to determine potential hazards and where they stand in relation to our communities.  As a visualization tool, GIS can assist in locating, identifying, and understanding relationships between areas of social vulnerability and potential hazard exposure.  For example, available U.S. census data can be layered onto a map to include the distribution of age, income, ethnicity, housing quality, transportation capacity, etc.[6]  This information can be used to create appropriate mitigation strategies, to identify how or where certain areas should be evacuated, or even how first responders (law enforcement, medical personnel, fire service etc.) should approach certain areas during a disaster.[7]

Furthermore, with advances in GIS and computer technology today, individuals and communities can potentially use the increasingly accessible tools to manage their own knowledge and community data.[8]  If promoted within communities, GIS can be utilized to communicate risks and hazards to the population with no requisite specialized knowledge.[9]  Currently, many communities and homeowners lack the knowledge and motivation to take appropriate cautions or mitigate potential hazards.  Having access to personalized and compelling visuals may ameliorate the issue, while providing local governments invaluable information for disaster management and preparedness.[10]

Challenges and Future Steps – A Look at FEMA Flood Mapping

First and foremost, data is the most essential element of GIS mapping – the program itself merely creates a visual display of the inputted data.[11]  Without accurate data, the program cannot produce accurate depictions of the desired information or relationships between them.  Therefore, the greatest challenge is the weakness of current data, or the lack of data in general.  Although currently improving, there is also a deficiency of readily available GIS software, and more importantly, a failure in the communication/utilization of GIS and the information it can provide.[12]

Considering the significant role GIS already plays in emergency management, I believe the government, as well as local governments, should be allocating funds to improve each of these three issues.  First, to increase data collection and to improve the accuracy of existing data, second, to promote the use of GIS software by communities, and third, to improve the accessibility and communication of the information produced.  In regards to these aspects, I would like to discuss the ongoing Federal Emergency Management Agency (FEMA) flood mapping as part of the National Flood Insurance Program (NFIP).

The NFIP was created to provide a means for homeowners to financially protect themselves from flood events – flood insurance is offered to property owners if the community participates in the NFIP and meets floodplain management ordinances established by FEMA.[13]

FEMA’s flood hazard mapping program, Risk Mapping, Assessment and Planning (MAP), identifies flood hazards and assesses risks of certain areas.[14]  This mapping is used to create the Flood Insurance Rate Maps (FIRMs), the basis of NFIP regulations and insurance requirements.[15]  The FIRMs are then used to determine insurance premiums and set minimum floodplain standards for communities based on the assessed risks of the particular location.[16]   Currently, the NFIP states that it is working towards updating the accuracy of flood maps and providing policyholders with information to better understand the program.[17]

1. Improving Accuracy of GIS Data: In cost-benefit analysis, hazard mapping is found to have positive net benefits, thereby indicating that it is beneficial to work towards improving the accuracy of our mapping.[18] A study conducted by FEMA in 2000 found that when considering all costs (flood data updates, map maintenance, new mapping, conversion to new standards, and customer service), the flood maps created a benefit of 1.33 billion dollars, with a cost of 799 million.[19] Currently, flood maps are used an estimated 30 million times a year by government agencies, FEMA contractors, lenders, insurance agents, land developers, community planners, property owners, realtors, and by others for risk assessment, land management, mitigation, and disaster response.[20]  With this in mind, it is clear that the accuracy of these maps is vital and relevant to widespread decisions.

For example, improving the accuracy of FEMA’s flood maps is predicted to directly affect the insurance rates and land use.[21]  More accurate estimates of flood risk allow appropriate insurance premiums to be calculated for certain areas and particular structures.[22]  The accuracy of price may also increase the understanding and trust of flood risk, and therefore encourage and ensure insurance coverage.[23]  In connection to land use, the correctly priced insurance premiums accurately reflect risk, and in turn, reduce the development of land in high-risk areas.[24]  Improvements in accuracy can add restrictions to properties that should have been designated at-risk (reducing future losses of life and property), and conversely, lifting restrictions in areas that were incorrectly designated at-risk (lowering costs and mandatory improvements, enabling the land to be used in other ways).[25]  In fact, FEMA’s website includes an option to contest floodplain boundaries if homeowners believe their properties were incorrectly identified in high-risk areas – increasing accuracy of flood maps may therefore reduce the contesting of boundaries and save time, money, and effort of all parties.

Learning from the NFIP and FEMA’s FIRM flood maps, we can see that it is indeed beneficial to invest in data collection for GIS use in emergency management.  This can be applied to any context, rather than solely floods and national flood insurance – perhaps to fire or earthquake risks, or anything relevant to a community’s planning.

2&3. Promoting Use of GIS Software and Improving Communication of Risks: Little research has been done to show how to effectively communicate risk to the public through hazard maps.[26]  However, previous studies have shown that in particular, there are issues with communicating via FEMA’s FIRM flood maps.[27]  Taking it upon myself to investigate the FEMA website, I found it very difficult to navigate and understand.  There is an overwhelming amount of information and it is unclear how or who it is intended to be used by.  Through the Flood Map Service Center ‘Search by Address’ page, a homeowner can simply type in their address to pull up an interactive flood map, National Flood Hazard Layer (NFHL).  This is where the seemingly simple task becomes complicated.  I downloaded the map corresponding to my current apartment address only to find that I had absolutely no idea what I was looking at, or what any of the data meant.  I then managed to locate an FAQ page on the website, linking a 54 page document available for download titled, “How to Read a Flood Insurance Rate Map Tutorial.”  It is quite possible that I did not spend enough time attempting to read and understand the guidance provided by the FEMA webpage, but it is clear why a homeowner or individual with little to no experience in this area would fail to understand the implications of the data.

Furthermore, FEMA’s in-house mapping software, HAZUS, is available to the public for download.  HAZUS, utilizing GIS systems, is described as a “nationally applicable standardized methodology that estimates potential losses from earthquakes, hurricane winds, and floods.”[28]  Looking to download and examine the software, I found that it requires ESRI’s ArcGIS program to run, and that the FEMA site directs users to ESRI where it can be purchased.  From this, I can assume that the HAZUS program is primarily used by and targeted towards local governments, rather than individuals and homeowners.  Although this makes sense, it again limits the accessibility of invaluable information that can be provided – and even local governments may choose not to pursue the costs of analyzing the public data through GIS mapping (costs of the program and of individuals educated to use the program, time to overlay data, etc.).

Again, based solely off of FEMA’s FIRM maps and HAZUS program, we can see that the accessibility of GIS programs, as well as the communication of risk information, is at issue.  As suggested by Susan Cutter, a Geography Professor at the University of South Carolina, emergency managers should look to community partners such as universities to assist with mapping and analysis needs.[29]  From personal experience, she describes the ongoing partnership between the University of South Carolina and the South Carolina Emergency Management Division, allowing the two to work towards a common goal – students can gain experience, while the organization can utilize the resources produced.[30]  She further suggests that if costs of the program or ability to use a program are at issue (such as ESRI ArcGIS), other mapping tools or platforms may be available.[31]  For example, I downloaded QGIS, a free GIS program rather than the common, but pricey ArcGIS.

Conclusion

            Starting with FEMA, and moving towards states and local governments, GIS investment should be prioritized for use in disaster management.  Funds ideally should be directed towards increasing data and improving accuracy of that already existing, towards making GIS programs available for use (or finding assistance through partnerships), and towards promoting the communications of risk assessment with the public.


[1] GIS, National Geographic Society, http://nationalgeographic.org/encyclopedia/geographic-information-system-gis/ (last visited Nov. 1, 2016).

[2] Id.

[3] Id.

[4] What is GIS, ESRI, http://www.esri.com/what-is-gis (last visited Nov. 1, 2016).

[5] T.J. Cova, GIS in Emergency Management in Geographical Information Systems: Principles, Techniques, Applications, and Management 845-858, 850 (1999).

[6] Disaster Preparedness and Recovery, Emergency Management, http://www.emergencymgmt.com/disaster/How-GIS-Can-Aid-Emergency-Management.html (last visited Nov. 1, 2016).

[7] Alexandra Enders & Zachary Brandt, Using Geographic Information System Technology to Improve Emergency Management and Disaster Response for People with Disabilities, 17 J. of Disability Pol’y Stud. 223-29, 224 (2007).

[8] Phong Tran et al., GIS and Local Knowledge: A Case Study of Flood Risk Mapping in Viet Nam in Disasters 152-169, 155 (2009).

[9] Id. at 153.

[10] Id.

[11] Enders & Brandt, supra note 7, at 224.

[12] Cova, supra note 5, at 856.

[13] Flood Insurance Reform, FEMA, https://www.fema.gov/flood-insurance-reform (last visited Nov. 1, 2016).

[14] National Flood Insurance Program: Flood Hazard Mapping, FEMA, https://www.fema.gov/national-flood-insurance-program-flood-hazard-mapping (last visited Nov. 1, 2016).

[15] Id.

[16] Flood Insurance Reform – Mapping Flood Hazards, FEMA, https://www.fema.gov/flood-insurance-reform-mapping-flood-hazards (last visited Nov. 1, 2016).

[17] Flood Insurance Reform, FEMA, https://www.fema.gov/flood-insurance-reform (last visited Nov. 1, 2016).

[18] Committee on FEMA Flood Maps et al., Mapping the Zone: Improving Flood Map Accuracy 79 (2009).

[19] Id. at 82.

[20] Id. at 79.

[21] Id. at 80-81.

[22] Id. at 81.

[23] Id.

[24] Id. at 80.

[25] Id.

[26] Id. at 91.

[27] Id.

[28] Hazus-MH Overview, FEMA, https://www.fema.gov/hazus-mh-overview (last visited Nov. 1, 2016).

[29] Disaster Preparedness and Recovery, Emergency Management, http://www.emergencymgmt.com/disaster/How-GIS-Can-Aid-Emergency-Management.html (last visited Nov. 1, 2016).

[30] Id.

[31] Id.

Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

By Julie Amadeo, J.D. 2016, New York University School of Law  This article has been adapted from a larger work.   This post is part of the Environmental Law Review Syndicate. I. Introduction Human minds are primed to jump to conclusions. Call them intuitions, or […]

Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Kyle Burns* This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction Every nation around the world faces ecological hardships. Almost every nation has responded with a legal regime that attempts to ensure environmental protection. These […]

With Energy Law Federalism Under Construction, State Policymaking May Be Delayed

With Energy Law Federalism Under Construction, State Policymaking May Be Delayed

John Bullock*

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


Introduction

As the public has become more aware of the intense connection between the practices of electric utilities and greenhouse gas emissions, interested groups have shone a brighter spotlight on the regulation of utilities in the United States. Some have called on the Federal Energy Regulatory Commission (“FERC”) to take on a more environmentally conscious role when exercising their authority to set wholesale rates.[1] While FERC still hasn’t explicitly taken environmental considerations into wholesale rate setting, it has taken steps to continue to ensure reliability as the nation’s energy portfolio composition shifts.[2]

 Generally, under the Federal Power Act, FERC has jurisdiction over sales of electricity for resale in interstate commerce (wholesale sales), electricity transmission, and practices “affecting” rates.[3] The Supreme Court recently authorized a construction of FERC’s jurisdiction in FERC v. Electric Power Supply Association (“EPSA”) to include practices that “directly affect” wholesale rates.[4] This decision was seen as good for clean energy, as it removed barriers for demand response resources[5] to compete in the wholesale market in the short-term, while allowing FERC to have more regulatory flexibility in the long-term.[6]

At the state level, legislators and regulatory bodies generally retain the authority to set retail rates, maintain and site local facilities, and to establish resource portfolios.[7] There are a wide range of potential policies that can be used to foster clean energy, including feed-in tariffs,[8] renewable portfolio standards,[9] rebates for renewables,[10] a carbon tax,[11] a ban on carbon imports and new coal plant construction,[12] and net-metering policies.[13] A majority of states in the country have passed some form of a renewable portfolio standard mandating a certain percentage of the state’s electricity come from renewable resources.[14] These policies can originate in the state legislature or can come from the state utility regulator directly.[15] These state policies use several different regulatory tools, from market-based incentives like renewable energy credits to other state law mechanisms such as long-term power purchase agreements or mandated utility-owned renewable generation.

Some of these state clean energy policies have recently been challenged or are currently being challenged in the federal courts on preemption and dormant commerce clause grounds.[16] Challenges to these policies typically allege that the state programs are either preempted by the Federal Power Act, or are an impermissible intrusion into Congress’s exclusive power to regulate interstate commerce.

The Court, by authorizing an expansion of FERC’s jurisdiction in EPSA, and by failing to clarify the preemption analysis under the Federal Power Act in another recent case, Hughes v. Talen Energy Marketing LLC, may have inadvertently created considerable uncertainty about the extent of federal and state authority—or at least failed to remedy existing uncertainty. More thorough discussions on the shifting approach to the division of state and federal authority in energy law can be found elsewhere.[17] This Article will instead offer some speculation about the impacts of EPSA and Hughes on state policymaking.

 FERC v. EPSA and Hughes v. Talen Energy Marketing

In Federal Energy Regulatory Commission v. Electric Power Supply Ass’n, the Supreme Court upheld FERC’s assertion of jurisdiction by allowing it to regulate practices that “directly affect” wholesale rates.[18] At issue in EPSA was whether FERC had authority to regulate demand response transactions (where a provider contracts with consumers to reduce energy consumption), or whether those transactions should be classified as “retail sales.”[19] The Federal Power Act grants FERC jurisdiction over practices affecting rates, and in EPSA, the Court adopted a D.C. Circuit test that cabined that authority to practices “directly affecting” rates.[20] After adopting the directly affecting test, the Court found that FERC had jurisdiction over demand response practices, that the rule did not impermissibly tread into authority reserved to the states, and that FERC did not act arbitrarily and capriciously in its decision to compensate electricity users at the same rates as electricity generators.

Whereas EPSA dealt primarily with the extent of FERC’s jurisdiction under the Federal Power Act, Hughes v. Talen Energy tackled the separate but related issue of whether a state program was preempted under the Federal Power Act.[21] The case was on review from the Fourth Circuit, where the appellate court found that a Maryland program was preempted both as a matter of field preemption (because FERC “occupies the field” of setting wholesale rates), and also as a matter of conflict preemption (because rates under Maryland’s program conflicted with FERC approved rates).[22] On review, the Supreme Court affirmed the lower court’s ruling, albeit on narrow grounds, finding that the Maryland program “impermissibly intrude[d] upon the wholesale electricity market, a domain Congress reserved to FERC alone.”[23]

One could argue that the Supreme Court narrowed the scope of the Fourth Circuit holding. For example, the Court distinguished between contracts-for-differences (which was the regulatory mechanism that Maryland deployed to encourage new natural gas plant development) and other more traditional long-term power purchase agreements.[24] However, in other ways, the Court’s opinion is actually more ambiguous—the Court does not clarify whether the correct analytical approach here should be conflict, field, or another form of preemption analysis,[25] and two Justices wrote concurring opinions to advocate for their distinct approaches.[26]

Because the opinion only addressed a narrow set of situations, the court did little if anything to address whether any other state regulatory mechanisms designed to encourage renewable deployment would be preempted under the Federal Power Act, and specifically limited their holding to Maryland’s program.[27] The decision provides no guidance on how to analyze these state law regulatory programs unless they contain contracts-for-differences that are pegged to a FERC-approved wholesale price, as Maryland’s program did.  Therefore, the case is unlikely to act as a prophylactic to the litigation that is ongoing in the lower courts.[28] It makes one wonder why the Supreme Court took the case in the first place—there was no circuit split after the Fourth Circuit’s decision, and the Court failed to use the case as an opportunity to instruct the lower courts.

Putting Hughes and EPSA together:

Examining Impacts on State Regulatory Authority

Combining the holding from EPSA with Hughes along with some of the more archaic language in previous energy preemption cases provide ample fuel for challenges to state renewable energy policies. Simply, if the Federal Power Act draws a jurisdictional “bright-line,”[29] or if “[i]t is common ground that if FERC has jurisdiction over a subject, then the States cannot have jurisdiction over the same subject,”[30] then any practice that “directly affects” wholesale rates should be exclusively within FERC’s jurisdiction. This could result in effectively shrinking state regulatory authority after EPSA and Hughes.

Still, the extent of practices that come within FERC’s “affecting” jurisdiction is unknown, and it may be that FERC must first exercise this jurisdiction over a particular practice before it has a preemptive effect. However, this doesn’t prevent litigants from making those arguments in the lower courts to invalidate clean energy programs, and Hughes may stand as a missed opportunity to clarify the scope of preemption under the Federal Power Act.

In fact, litigants are already citing Hughes and EPSA to challenge state clean energy programs. On October 2016, the Coalition for Competitive Energy filed a challenge to the New York Public Service Commission’s Clean Energy Standard in the Southern District of New York.[31] The Clean Energy Standard was issued in August,[32] and set a target for New York to obtain fifty percent of their electricity from renewable resources by 2030.[33]  In addition to continuing New York’s renewable energy credit program,[34] the Clean Energy Standard included a requirement that load-serving entities purchase Zero-Energy Credits that correlate with electricity generated by nuclear facilities.[35] Coalition for Competitive Energy is challenging this specific program (the zero-emissions credits) in their complaint, alleging that it “operates within the area of FERC’s exclusive jurisdiction” and should therefore be preempted.[36] The petition cites EPSA to argue that “[s]tate actions that ‘directly affect the wholesale rate’” are invalid.[37]

Additionally, the Second Circuit recently granted Allco’s request for an injunction to prevent state officials from conducting a clean energy request for purchase (“RFP”) in Connecticut.[38] The decision did not enjoin state officials in Massachusetts and Rhode Island who are also participating in the RFP.[39] While the Second Circuit did not disclose their reasoning when it granted the injunction,[40] Allco’s petition for injunction pointed to Hughes when arguing that the program was preempted under the Federal Power Act.[41]

While it may seem that uncertainty in the preemption context is a net loss for individuals concerned about an accelerated transition to clean energy, climate advocates may also weaponize Hughes in other contexts to argue that other state polices that prop up coal and natural gas plants are preempted by the Federal Power Act. For example, the Ohio Public Utilities Commission recently attempted to use power-purchase agreements—which can sometimes be a tool to generate procure renewables[42]—to subsidize coal plants in the state.[43] The proposal was blocked by FERC before it could take effect,[44] but the program could have been challenged under Hughes if it remained in place.

Both examples citing to Hughes show challenges to state energy programs that operate outside of FERC-approved markets, unlike the Maryland program at issue in Hughes where the parties adjusted the FERC-approved rate.[45] Perhaps the biggest challenge going forward for clean energy advocates will be how to distinguish state programs that do not advance climate goals (like the Maryland program at issue in Hughes) from those that do (such as the program at issue in Allco), when both often use the exact same regulatory tools.

The Supreme Court may return to the question of the extent of federal and state authority under the Federal Power Act sometime within the next few years. It could reach one of several conclusions. It may reaffirm past language about the “bright-line” between federal and state regulatory authority—confirming that EPSA represented an expansion of FERC’s power and a simultaneous restriction on state authority. It may endorse some form of concurrent jurisdiction, as it did in the Natural Gas Act context in Oneok Inc. v. Learjet, Inc.,[46] and if it does, it may then decide how to restructure the preemption analysis under this concurrent jurisdictional model. It may establish some method of floor preemption,[47] or alternatively, it may leave the preemption decision up to the federal agency,[48] as it does in some other contexts.[49] Also, the Court may simply leave the resolution of these issues up to the lower federal courts.

Conclusion

Regardless of the approach the court takes, the fact that all of these questions remain open and unresolved currently creates considerable legal uncertainty for state regulators that are trying to update and craft effective clean energy laws. States are already testing the boundaries of their authority in many instances,[50] and many may continue to do so despite these new uncertainties. Further, it may be impossible to disaggregate the influence that legal uncertainty is having on state regulators from other influences such as political pressures. I would assume state legislators and regulators—some that are designing state laws to ensure their compliance with the Clean Power Plan—would likely prefer clarity on what regulatory mechanisms they are allowed to use without running afoul of the Supremacy Clause. Hughes thus represents a missed opportunity, and the recent power trio of Oneok, EPSA, and Hughes may shortly turn into a quartet.


* J.D. Candidate, Harvard Law School. The author would like to thank Ari Peskoe, Senior Fellow in Electricity Law at the Harvard Environmental Law Program Policy Initiative, and Robin Smith and Nate Bishop for their help and advice. Any mistakes or omissions are the author’s own.

[1] See, e.g., Christopher Bateman and James T.B. Tripp, Towards Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014) (arguing that consideration of environmental consequences by FERC is permissible under the Federal Power Act); Joel B. Eisen, FERC’s Expansive Authority to Transform the Electricity Grid, 49 U.C. Davis L. Rev. 1783, 1788 (2016) (arguing that under recent case law, FERC may now include environmental considerations into wholesale rates so long as those considerations “directly affect” those rates); Steven Weissman & Romany Webb, Berkeley Center for Law, Energy & the Environment, Addressing Climate Change Without Legislation: Volume 2, How the Federal Energy Regulatory Commission Can Use Its Existing Legal Authority to Reduce Greenhouse Gas Emissions and Increase Clean Energy Use (2014), https://perma.cc/JH8H-FLYT (arguing that FERC can add the cost of carbon when setting the prices in the wholesale market).

[2] Order No. 1000, Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 136 FERC ¶ 61,051, 76 Fed. Reg. 49841 (Aug. 11, 2011) (codified at 18 C.F.R. § 35) (requiring regional transmission planning to consider state and local public policy requirements); Order No. 745, Demand Response Compensation in Organized Wholesale Energy Markets, 134 FERC ¶ 61,187, 76 Fed. Reg. 16657 (Mar. 24, 2011) (codified at 18 C.F.R.§ 35.28(g)(1)(v)) (allowing demand response providers to bid into the wholesale market).

[3] New York v. FERC, 535 U.S. 1, 6–7 (1996).

[4] 136 S. Ct. 760, 773 (2016).

[5] FERC defines demand response as “a reduction in the consumption of electric energy by customers from their expected consumption in response to an increase in the price of electric energy or to incentive payments designed to induce lower consumption of electric energy.” 18 C.F.R. § 35.28(b)(4) (2015).

[6] See Joel B. Eisen, FERC v. EPSA and the Path to a Cleaner Energy Sector: Introduction, 40 Harv. Envtl. L. Rev. Forum 1, 7–8 (2016) (“In the long run, this concise, broad jurisdictional standard gives FERC considerable flexibility to promote a cleaner, more efficient Smart Grid.”).

[7] See 16 U.S.C. § 824 (a)–(b) (2016); New York, 535 U.S. at 19–25 (“FERC has recognized that the states retain significant control over local matters . . . [including] generation and transmission siting . . . [and] authority over utility generation and resource portfolios”) (citing Order No. 888, Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities, 75 FERC ¶ 61,080, 61 Fed. Reg. 21540, 21,626 n.543, n.544 (May 10, 1996) (codified at 18 C.F.R. § 35 and § 385)).

[8] See generally Toby Couture and Karlynn Cory, National Renewable Energy Laboratory, State Clean Energy Policies Analysis (SCEPA) Project: An Analysis of Renewable Energy Feed-in Tariffs in the United States (2009), https://perma.cc/G2MZ-AY7F.

[9] See generally David Hurlbut, National Renewable Energy Laboratory, State Clean Energy Practices: Renewable Portfolio Standards (2008), https://perma.cc/JWE4-J9BB.

[10] See generally Eric Lantz and Elizabeth Doris, National Renewable Energy Laboratory, State Clean Energy Practices: State Renewable Rebates (2009), https://perma.cc/HWE7-EBZM.

[11] The State of Washington considered a carbon tax in a 2016 ballot initiative. See, Initiative Measure No. 732 (filed March 29, 2016) https://perma.cc/26ZL-Z9D8.

[12] Minn. Stat. § 216H.03, subd. 3(2) and (3) (2007) (“no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions.”)

[13] See generally Edison Electric Institute, Solar Energy and Net Metering (2016), https://perma.cc/Z3GU-5LKV.

[14] Jocelyn Durkay, “State Renewable Portfolio Standards and Goals,” National Conference of State Legislatures (July 27th, 2016) (reporting that “Twenty-nine states, Washington, D.C. and three territories have adopted an RPS, while eight [additional] states have set renewable energy goals”). https://perma.cc/DV9L-JRRL.

[15] See Public Service Commission of N.Y., Order Adopting a Clean Energy Standard (Aug. 1 2016). https://perma.cc/3GSF-Q36Z.

[16] See, e.g., North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016) (of three separate opinions, two held that Minnesota statute was preempted by the Federal Power Act); Rocky Mountain Farmers Union, et al., v. Richard W. Corey, 730 F.3d 1070 (9th Cir. 2013); Energy and Environmental Legal Institute v. Epel, 793 F.3d 1169 (10th Cir. 2015); Allco Finance Ltd. v. Klee, 805 F.3d 89, 95–96 (2d Cir. 2015) (rejecting plaintiff’s argument that solar contracts approved by the state regulator were preempted by the Public Utilities Regulatory Policies Act); see also Harvard Environmental Law and Policy Institute, State Power Project: Examining State Authority in Interstate Electricity Markets, https://statepowerproject.org (2016).

[17] Jim Rossi, The Brave New Path of Energy Federalism, 95 Tex. L. Rev. (forthcoming 2016).

[18] EPSA, 136 S.Ct. at 773.

[19] The D.C. Circuit found that FERC’s regulation of demand response transactions impermissibly intruded outside of FERC’s authorized jurisdiction under the Federal Power Act. EPSA v. FERC, 753 F.3d 216, 222 (D.C. Cir. 2014).

[20] EPSA, 136 S.Ct. at 774 (citing Calif. Independent System Operator v. FERC, 372 F.3d 395, 403 (D.C. Cir. 2004)).

[21] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288 (2016).

[22] PPL Energy Plus, LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014).

[23] Hughes, 136 S. Ct. at 1292.

[24] Id. at 1299 (“But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for differences does not transfer ownership of capacity from one party to another outside the auction.”).

[25] Id. at 1297 (“A state law is preempted where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (citations omitted).

[26] Id. at 1300 (Sotomayor, J., concurring) (clarifying that the purpose of the Federal Power Act should serve as the “ultimate touchstone” for the preemption analysis and the Court should resist “talismanic” preemption vocabulary); id. at 1301 (Thomas, J., concurring) (stating that he would not rest his holding on principles of implied-preemption).

[27] Id. at 1299 (“Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures untethered to a generator’s wholesale market participation.”).

[28] See supra note 16 and accompanying text.

[29] Federal Power Commission v. Southern Cal. Edison Co., 376 U.S. 205, 215–216 (1964) (“Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction. . .”). But see Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1601 (2015) (describing the clear division between federal and state authority in the Natural Gas Act context as a “Platonic ideal”); FERC v. EPSA, 136 S.Ct. 760, 780 (2016) (“The [Federal Power Act] makes federal and state authority complementary”); Hughes v. Talen Energy Marketing, LLC., 136 S.Ct. 1288 (2016) (Sotomayor, J.,  concurring) (“the Federal Power Act, like all collaborative federalism statutes, envisions a federal-state relationship marked by interdependence”).

[30] Mississippi Power & Light Co. v. Mississippi ex. rel. Moore, 487 U.S. 354, 377 (1984) (Scalia, J., concurring). The majority opinion also acknowledges “FERC has exclusive authority to determine the reasonableness of wholesale rates. . .” Id. at 355.

[31] Complaint, Coalition for Competitive Energy v. Zibelman (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-08164), https://perma.cc/U9Z9-2UR6.

[32] Public Service Commission of New York, Order Adopting a Clean Energy Standard (Aug. 1 2016), https://perma.cc/J82W-XSZP.

[33] Id. at 6.

[34] Id. at 38.

[35] Id. at 45.

[36] Complaint at 5, Coalition for Competitive Energy v. Zibelman, (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-8164), https://perma.cc/U9Z9-2UR6.

[37] Id. at 11.

[38] Order Granting Preliminary Injunction, Allco Finance Ltd. v. Klee (2d. Cir. 2016) (No. 16-2946).

[39] See id.

[40] See id.

[41] Petition for Injunction at 2, Allco Finance Ltd. v. Klee, No. 16-2946 (2d. Cir. 2016) (No. 16-2946).

[42] Cf. American Council on Renewable Energy, Renewable Energy in Massachusetts (2014), https://perma.cc/V6GF-GEF8 (“In February 2014, the state approved 12 long-term power purchase agreements with four Massachusetts utilities for 409 MW of wind projects in Maine and New Hampshire”).

[43]See In the Matter of the Application of Ohio Electric Company, Case No. 14-1297-EL-SSO (Pub. Util. Comm’n of Ohio 2016), https://perma.cc/T24L-6XCA.

[44] Gavin Bade, FERC Blocks Ohio Power Plant Subsidies for AEP and FirstEnergy, Utility Dive (Apr. 28, 2016), https://perma.cc/4ZCG-SPQT.

[45] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288, 1299 (2016).

[46] 135 S. Ct. 1591, 1599 (instructing that for preemption under the Natural Gas Act, the appropriate inquiry is to examine the target at which state law “aims”).

[47] Jim Rossi and Thomas G. Hutton, Federal Preemption and Clean Energy Floors, 91 N.C. L. Rev. 1283 (2013).

[48] See Rossi, supra note 17 at 65 (stating that whether state programs are preempted may be left to FERC, as opposed to a case-by-case determination by the judiciary).

[49] See generally Brian Galle & Mark Seidenfeld, Administrative Law’s Federalism: Preemption, Delegation and Agencies at the Edge of Federal Power, 57 Duke L. J. 1933 (2008).

[50] See supra note 16 and accompanying text.

Pipelines, Protests and General Permits

Pipelines, Protests and General Permits

By Samantha L. Varsalona Georgetown University Law Center, Class of 2018 Staff Member, Georgetown Environmental Law Review This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Abstract The Dakota Access Pipeline (DAPL) has become a contentious […]

Science And Deference: The “Best Available Science” Mandate Is A Fiction In the Ninth Circuit

Science And Deference: The “Best Available Science” Mandate Is A Fiction In the Ninth Circuit

Elizabeth Kuhn* This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. I. Introduction Many recent decisions by the Ninth Circuit[1] have required the court to review agency actions under the Administrative Procedure Act[2] (APA) arbitrary or […]

An Ecology of Liberation: The Shifting Landscape of Environmental Law in an Era of Changing Environmental Values

An Ecology of Liberation: The Shifting Landscape of Environmental Law in an Era of Changing Environmental Values

By Michael Zielinski, William & Mary Law School, Class of 2017

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


I. Introduction

In 1971, the Peruvian theologian and Dominican priest Gustavo Gutiérrez published his seminal work, A Theology of Liberation, in which he advocated an activist approach to Christianity based on the belief that it is only through living in solidarity with exploited and impoverished populations that all people can ultimately become free from all forms of injustice, oppression, and suffering.[1] Recognizing that “the signs of the times,” demanded a theology that synthesized spiritual contemplation and direct action,[2] Gutiérrez identified Christ’s description of the Last Judgment as the foundation of this call to solidarity with the poor[3]:

“I was hungry and you gave me food. I was thirsty and you gave me drink. I was a stranger and you took me in. I was naked and you clothed me. I was sick and you visited me. I was in prison and you came unto me…insofar as you did this to one of the least of my brethren, you did it to me.”[4]

More than three decades later, Pope Francis used similar language of liberation when he declared climate change to be the imperative moral issue of our time, asserting “the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor.”[5] Moreover, both Gutiérrez and Pope Francis identified rampant consumerism and a self-centered notion of economic progress as the greatest contributors to deplorable conditions in the developing world.  Just as Gutiérrez descried social and economic poverty as “the fruit of injustice and coercion” sown by wealthy nations and force-fed to poorer ones,[6] so too Pope Francis lamented that human beings frequently seem “to see no other meaning in their natural environment than what serves for immediate use and consumption.”[7]

Liberation theology, although most strongly associated with the Catholic Church in Latin America,[8] is not uniquely Catholic, or even uniquely Christian. Rather, the concept of liberation is a facet of all religions that challenge the injustice and poverty that are the byproducts of neoliberal economics.[9] Moreover, though the term “liberation” often carries a religious connotation,[10] liberationist principles can exist even within secular ethical theories, notably environmental justice,[11] that do not expressly use the term “liberation.” Similar to how liberation extends beyond the bounds of religion, steadily growing concerns over climate change and other environmental problems are also not confined to religion,[12] let alone any particular religion.[13] The twenty-first century is witnessing the emergence of a new ecological conscience, and as the world’s largest economic power, the United States has the opportunity to place itself in the vanguard of a global environmental movement toward greener and more sustainable practices.[14]

Rising sea levels, unpredictable weather, and dwindling natural resources make it increasingly difficult to maintain the notion that nature is beyond our ability to hurt and its bounty beyond our ability to deplete.[15] Americans’ changing attitudes and behaviors regarding sustainability in this Anthropocene era[16] indicate a sobering realization that unchecked greenhouse gas emissions have created a tragedy of the atmospheric commons.[17] Increasing awareness of the magnitude of climate change and other pressing environmental concerns has begun shifting our collective environmental values toward an ethical posture that acknowledges the continuity and interdependence of all life,[18] thus laying bare the logical conclusion that our mistreatment of the natural world translates into mistreatment of the poor, who are especially vulnerable to environmental harms.[19] The mutability of environmental ethics, however, strains against the intractability of environmental law, whose overreliance on economic principles and stilted doctrine has locked it into a narrow and anthropocentric outlook that perceives environmentally responsible practices solely as instrumental, rather than intrinsic, goods.[20]

Changes in climate, both literal and metaphorical, have created a world where environmental rights and human rights are no longer distinct concepts.[21] Yet current environmental law fails to adequately serve the public good because an outdated approach to valuing the environment and situating humans in relation to it prevents the law from evolving to conform to contemporary values.[22] Though remedying this problem is a gargantuan task with no simple solution,[23] this paper argues that the market-based principles and inflexible legal doctrines that have historically governed environmental law should yield to a liberationist ideal already taking root in environmental ethics, an ideal that recognizes “[t]here is no separating human beings from ecological nature,”[24] and therefore seeks to protect human interests by protecting the interests of the natural world.

Part II of this paper provides an overview of several strands of environmental ethics that rose to prominence over the last forty years, most notably value theory, which strongly influenced the policies underlying many of the major pieces of environmental legislation passed in the late 1960s and early 1970s. That section also explores the concepts of ecojustice and environmental justice, two approaches to humanity’s ethical duties toward the environment rooted in social justice. It further argues that environmental ethics has taken a backseat to utilitarian, economics-centered policies because of its perennial struggle to find purchase in the realm of environmental law. Part III argues that although lawmakers on the federal and state levels are finally formulating legislative and regulatory plans to address major environmental problems like climate change, efforts to put these plans into action are hindered by two systemic shortcomings of current environmental law: cost-benefit analysis and standing doctrine. Part IV returns to the concept of liberation, first analyzing how it overcomes or avoids many of the problems other theories of environmental ethics have faced. Next, it explains that emergent twenty-first century environmental values indicate a movement toward a liberationist approach to environmental ethics, and concludes by exploring how the truest expressions of this movement—the notions of uncanniness and planetarian identity—can correct the shortcomings of existing environmental law.

[Note: This piece has been modified from its original content for the ELRS submission.  A subsequent publication will include this article in its entirety. For those who would like to read further, please see the citation in the following footnote.[25]]

II. Environmental Ethics and Their Divorce from Environmental Law

            Given the vast history of environmental ethics, even just in the United States,[26] this paper will limit its focus to several major developments in environmental ethics from the latter-half of the twentieth century and their interaction with environmental law. Of particular interest is the influence of value theory—“what matters and why”—on environmental ethics and law.[27] Value theory was at the forefront of environmental ethics from the late 1960s through the 1970s, the “golden age of environmental law” that saw Congress enact the most significant of the country’s environmental legislation,[28] including the National Environmental Policy Act (NEPA),[29] Clean Air Act,[30] Clean Water Act,[31] and Endangered Species Act (ESA).[32]

This section is divided into three parts. The first offers a quick overview of value theory as applied to environmental ethics, focusing on the distinction between nature as an intrinsic good and an instrumental good. The second part considers the concepts of “ecojustice,” a Christian strategy of environmental ethics that views nature as an intrinsic good, and “environmental justice,” a (mostly) secular approach to environmental ethics that regards nature as more of an instrumental good. The third part explains the limits of value theory, and why these limits ostensibly make it unworkable from the perspective of environmental law.

A. Value Theory and the Strategy of Nature’s Standing

Willis Jenkins, a professor of environmental theology and ethics at the University of Virginia, has noted that, compared to other fields of “practical ethics,” environmental ethics struggles to reach a consensus on what it is actually trying to achieve and how it should go about achieving it.[33] This is because environmental ethics has trouble agreeing on why people should find that nature has value, and thus regard environmental issues as morally important.[34] Several different strategies have arisen that attempt to answer this question, and arguably the best known of these is something Jenkins identifies as “the strategy of nature’s standing,” a name that carries obvious legal overtones.[35] This strategy attempts to situate moral value within nature itself, but when it emerged during the golden age of environmental law, ethicists quickly realized “that the inherited vocabularies of ethics could not capture the value of nature, focused as they were on human interests (consequentialism) and rights (in deontological and contract theories).”[36] Accordingly, a new theory of nature’s value was needed, and the question became whether nature held “intrinsic value” for humanity in addition to mere “instrumental value.”[37] In other words, is the natural world just “a means to some other end” (instrumental value), or is it “an end in itself” (intrinsic value)?[38]

Advocates for nature’s intrinsic value asserted that traditional “anthropocentric” conceptions of the natural world should be replaced with a “biocentric” approach “locating value in life itself (and other aspects of self-organizing nature such as species, ecosystems, and even the planet),” or with an even stronger “ecocentric” or “deep ecology”[39] approach “presenting human interests and rights as just one example of the ethical weight of all self-organizing nature.”[40] On the other side of the argument, advocates for an instrumental conception of nature’s value held to an anthropocentric view that “the concept of value makes no sense independent of human beings for whom the value matters.”[41] The debate between intrinsic and instrumental was not (nor does it continue to be) black and white. Some environmental ethicists occupied a middle ground, acknowledging that although nature has intrinsic value, “such value does not . . . entail any obligation on the part of human beings,” because that intrinsic value by itself does not necessarily “contribute[] to the well-being of human agents.”[42]

B. Ecojustice and Environmental Justice

Just as he identifies three major strategies for making environmental problems intelligible to a secular moral experience, Jenkins also identifies three major strategies for explaining the importance of the environment from a Christian moral perspective.[43] Of greatest interest to this paper is ecojustice, which mirrors the value theory-focused approach of the strategy of nature’s standing[44] and generally reflects the environmental values of Roman Catholicism,[45] the soil from which liberation theology grew. According to Jenkins, ecojustice holds that nature has intrinsic moral value for Christians by virtue of being part of God’s creation: “The strategy of ecojustice makes respect for creation a mode of response to God. Right relations with God require right relations with God’s creation, which by virtue of its own relationship with God, calls for moral response.”[46]

As the name implies, ecojustice takes the concept of justice “as its overarching moral category,”[47] meaning it shares more than just a similar developmental timeline with liberation theology.[48] Like liberation theology, ecojustice is pastoral, which means it operates largely at the interstitial places between base Christian communities and the Church, bringing the two together to foster a more productive dialogue.[49] Moreover, by implicating environmental concerns in questions of economic and social justice, ecojustice expressly links harm to the environment with harm to the poor. For example, in 1989 a Presbyterian committee declared that “nature has become co-victim with the poor, that the vulnerable earth and the vulnerable people are oppressed together.”[50]

Ecojustice’s arguably secular counterpart “for bringing environmental issues within the purview of justice,” is called (unsurprisingly) environmental justice,[51] and is generally defined as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[52] Though often regarded as an offshoot of the civil rights movement,[53] environmental justice did not truly begin developing in earnest until roughly a decade after the emergence of ecojustice in the early 1970s.[54] In a little over ten years, the movement gained enough momentum that the U.S. Environmental Protection Agency (EPA) created its own Office of Environmental Justice in 1992.[55] Two years later, President Clinton issued Executive Order 12,898, instructing every federal agency to “make achieving environmental justice part of its mission by identifying and addressing . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[56]

Possibly due to their intertwining histories, the line separating ecojustice from environmental justice is not clear. Some environmental ethicists appear to regard environmental justice merely as a constitutive part of ecojustice, noting that several principles of environmental justice are basically restatements of ecojustice’s “integrative view” that strives for a “synthesis of justice and ecology, a single mission of religious reform responding to both environmental degradation and human oppression.”[57] Others, such as Jenkins, note that although ecojustice and environmental justice both concern themselves with the link between environmental degradations and human dignity, they differ in where they situate the locus of that dignity: “Ecojustice focuses on creation’s integrity; environmental justice on humanity’s ecological integrity.”[58]

Viewed from this perspective, ecojustice appears to intrinsically value nature because it “evaluate[s] right relations directly in reference to creation’s own dignity,”[59] whereas environmental justice seems to instrumentally value nature because it “critique[s] environmental degradations with respect to human dignity.”[60] Richard Bohannon and Kevin O’Brien seem to support this proposition,[61] but also go a step further, arguing that although environmental justice may have religious elements or be religiously motivated, its ties to religion, unlike ecojustice’s, have “not been prominent or explicit.”[62] More specifically, they note that the national survey of every registered toxic waste facility in the U.S. that the United Church of Christ produced in the wake of the Warren County protest included “no discussion of [religious] values, no mention of God or faith, and no emphasis on connecting the fight against injustice to the ministry of the church. This is a practical and political document, seeking to support community organizing and change public policy for the sake of social justice.”[63]

Ultimately, Bohannon and O’Brien conclude, the differences between ecojustice and environmental justice trace back to “the social location of [their] advocates. While environmental justice is a movement that emerged in inner cities and poor rural areas, eco-justice was developed by scholars, ministers, and academic theologians on university campuses.”[64] In other words, ecojustice comes from a place of social and economic privilege that environmental justice does not, and therefore ecojustice, despite all its good intentions, lacks self-awareness when it attempts to synthesize human and nonhuman interests under a single holistic vision.[65] This limitation on ecojustice’s ability to fully connect with those suffering the worst instances of injustice thus seems to eliminate it from the running as truly practical Christian environmental ethic.

Similarly, the strategy of nature’s standing, which also seems unable to generate a fully inclusive theory of the natural world’s value, appears to be unworkable as a secular environmental ethic. Indeed, some commentators suggest that environmental justice holds an advantage over the strategy of nature’s standing because whereas that value theory-laden approach struggles to find agreement on the criteria that give nature its moral worth (and therefore struggles to identify social practices adequate to protect that worth), environmental justice’s “ecological anthropology” lends itself to economic approaches that better jibe with the strictures of environmental law.[66] As we will see in Part III, however, even though environmental justice should in theory be able to curtail the consequentialist excesses of economic theories of environmental value, in practice cost-benefit principles frequently arrive at notions of “public good” that actually do more harm than good.

C. The Limits of Value Theory

            Jedidiah Purdy identifies two limits on value theory’s practical application that, despite the theory’s prominence in both secular and religious environmental ethics in the 1970s, undermined its ability to have a lasting effect on environmental law. The first limit boils down to the fact that because “value” is an ineluctably human construction, any claims about the value of nature necessarily rely on considerations that only humans can regard as values.[67] This is most true of anthropocentric conceptions of value, where “[a]ny claim about the value of nature must call on considerations that humans can regard as values, that is, which they can imagine themselves pursuing and respecting.”[68] But this limit also applies to biocentric and ecocentric theories that value nature intrinsically, because even if we do not confer value on nature, we still respond to value, and such response is contingent on our ability to recognize something as being “of value” in the first place.[69]

This limitation on value theory gives rise to the second: an inability to promote action. In other words, regardless of whether we adopt an intrinsic or instrumental approach to valuing nature, neither one tells us anything about how to protect that value.[70] Purdy uses the Endangered Species Act to illustrate this point, explaining that neither interpreting the Act from an intrinsic perspective (e.g., spotted owls have intrinsic value because the Act prioritizes their survival over nearly any competing human interest), nor from an anthropocentric perspective (e.g., the Act expresses a human preference for species’ survival) does anything to inform the Act’s operation.[71]

Purdy also notes a second pair of ethical theories, individualism and holism, which initially appear to be more promising than intrinsic and instrumental valuations of nature, yet also become unworkable as practical environmental ethics.[72] Individualism, in an environmental context, essentially operates as a narrower version of the biocentric and ecocentric strands of intrinsic value theory,[73] locating value in individual organisms’ “interests, points of view, or, perhaps, the very existence of individual animals and plants,”[74] but drawing the line at attributing moral standing to “holistic entities like species or ecosystems.”[75] This approach is attractive because valuing individuals creates an obligation to prevent, or at least not deliberately cause, the suffering of any living thing.[76] Followed to its logical end, however, this obligation becomes problematic for two reasons. First, because it attributes value to individuals and not larger natural systems, individualism appears to preclude valuing one species more than any other, even if one species is endangered and the other is invasive.[77] Second, this approach’s imperative to value the lives of all individual organisms ostensibly produces an absurd result in which environmental ethics stands in opposition to all natural systems: “consistent commitment to avoiding the suffering of sentient beings would seem to imply exterminating predators, even genetically engineering wild species so that the survival of some no longer requires the suffering of others—creating, that is, a world either without foxes and grizzlies, or with herbivorous versions of them.”[78]

On the other side of the spectrum is holism, which takes a “big picture” view on the environment, and “locates value in self-organizing systems such as ecosystems, species, or ‘nature’ itself.” [79] This means holism runs into the same wall as ecojustice: it fails to account for the values of and differences among individuals.[80] Just as ecojustice risks erroneously assuming that everybody, regardless of their personal experiences within their communities, will be fine so long as they share its vision of an integrated and harmonious environmental ethic,[81] so too does a holistic approach lead environmentalists to the unpleasant conclusion that the suffering of individual members of a species is morally acceptable so long as a the species as a whole survives.[82] Holism also hits a second snag in that it “dissolves the distinction between human and nonhuman,”[83] resulting in a perverse syllogism that declares any human activity, no matter how destructive, to be “natural”: “If we are part of nature, then everything we do is part of nature, and is natural in that primary sense.[84]

As with intrinsic and instrumental valuations of nature, individualism’s and holism’s uncompromising stances undermine their usefulness as practical environmental ethics. Each of these competing theories stubbornly refuses to acquiesce to any kind of moral pluralism in the belief that “seiz[ing] on one aspect of environmental value and exclud[ing] competing considerations [is] in the service of theoretical consistency.”[85] The irony, however, is that environmental law turned away from value theory precisely because its competing variants could not generate a consistent answer to the question of how we should value nature.[86]

III. Mechanisms Responsible for the Gulf Between Environmental Ethics and Law

[Omitted]

IV. Toward A Liberationist Approach in Environmental Ethics

[Omitted]

Conclusion

The persistence of disputes over how we should morally value the environment and the natural world demonstrates the difficulty of crafting practical yet ethical solutions to vast and abstract problems. But in the classic tradition of making lemonade out of lemons, a burgeoning unity of will among Americans to take action against today’s “crucibles of ethical development”[87] can hopefully galvanize ethical development, which in turn can both inform and be made “more palatable” by law.[88] A liberationist approach to environmental law, with its integrative view of social and environmental justice, as well as a vision of collaborative engagement among community members on the local, regional, national, and global levels, could smooth the process of adapting our outdated environmental laws to our evolving environmental values. Even liberation theology has its limits on its practical application, however. Gustavo Gutiérrez admitted that he could not do more than “sketch these considerations [i.e., the Church’s role in process of liberation], or more precisely, outline new questions—without claiming to give conclusive answers.”[89]

Accordingly, liberation theology, as any other religious tradition with an activist social agenda, struggles to have a lasting impact on law and public policy because it must render unto Caesar what is Caesar’s.[90] Liberation theology resides simultaneously in separate realms. On one side is the realm of the spirit, where liberation theology dwells in eternity, infinity, and possibility. On the other side is the material world, where temporality, finitude, and necessity hold sway. Fortunately for environmental law, it only has to worry about the here and now. Unfortunately, we live in a time where the nation’s environmental values are swiftly changing in the face of anthropogenic environmental problems of global significance, thereby demanding significant overhaul of environmental law in order for it to adequately safeguard these values.


[1] Gustavo Gutiérrez, A Theology of Liberation: History, Politics and Salvation 196-203 (Sister Caridad Inda & John Eagleson, eds. and trans., 1973) [hereinafter A Theology of Liberation] (originally published in Spanish as Teología de la liberación, Perspectivas 1971).

[2] Id. at 8.

[3] Id. at 117 (“[P]overty expresses solidarity with the oppressed and a protest against oppression.”).

[4] Matthew 25:31-45.

[5] Pope Francis I, Laudato Si’ ¶ 2 (2015); see also Cristina Maza, One Year Later, How a Pope’s Message on Climate Change Has Resonated, Christian Science Monitor (June 24, 2016), http://www.csmonitor.com/Environment/2016/0624/One-year-later-how-a-Pope-s-message-on-climate-has-resonated (“In the year since Pope Francis released his encyclical, Laudato Si’, imploring his followers and fellow believers to care for the earth and its creatures, observers say more and more Roman Catholics are beginning to view climate change as a moral issue in which caring for the earth and caring for the poor intersect.”).

[6] A Theology of Liberation, supra note 1, at 22.

[7] Pope Francis I, supra note 5, at § 15 ((quoting Pope John Paul II, Redemptor Hominis ¶ 15 (1979)); see also Pope Francis I, Care for Creation, Thepopevideo.org (Feb. 5, 2016), http://thepopevideo.org/en/video/ care-creation.html (“The relationship between poverty and the fragility of the planet requires another way of managing the economy and measuring progress.”).

[8] See Leonardo Boff & Clodovis Boff, Introducing Liberation Theology 9 n.1 (Paul Burns trans., 24th prtg. 2011) (identifying the second Latin American bishops’ conference held at Medellín, Columbia in 1968, which met to discuss strategies for implementing the pronouncements of the Second Vatican Council, as the “official launching” of the theme of liberation in Latin America).

[9] See generally The Hope of Liberation in World Religions (Miguel A. De La Torre ed., 2008) (providing an analysis of the liberationist elements within a number of religious traditions).

[10] This is not always true, however. For example, consider the women’s liberation and animal liberation movements.

[11] See Part II.B., infra.

[12] See, e.g., Sarah Krakoff, Planetarian Identity Formation and the Relocalization of Environmental Law, 64 Fla. L. Rev. 87, 92-93 (2012) (identifying the rapid growth of localism—“placing value on working and buying locally”—as a response to growing awareness about the dangers of climate change).

[13] See, e.g., Malavika Vyawahare, Faith Leaders Call for Climate Change Action, ClimateWire, Nov. 12, 2015, http://www.eenews.net/climatewire/stories/1060027860/search?keyword=pope+ francis (reporting on a symposium where more than fifty delegates representing a range of faiths expressed their hopes that members of all religions would rally around fighting both climate change and poverty).

[14] See Press Release, White House, U.S. Leadership and the Historic Paris Agreement to Combat Climate Change (Dec. 12, 2015), https://www.whitehouse.gov/the-press-office/2015/12/12/us-leadership-and-historic-paris-agreement-combat-climate-change (announcing the U.S.’s commitment to achieving the goals for combating climate change set forth in the Paris Agreement reached at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change).

[15] See Richard Herrmann, Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change 5, http://www.pewoceans.org/oceans/ press_release.asp. (2003) (“We have reached a crossroads where the cumulative effect of what we take from, and put into, the ocean substantially reduces the ability of marine ecosystems to produce the economic and ecological goods and services that we desire and need. What we once considered inexhaustible and resilient is, in fact, finite and fragile.”).

[16] See Jedidiah Purdy, After Nature: A Politics for the Anthropocene 1-2 (2015) [hereinafter After Nature] (acknowledging the general consensus in the scientific community that for some time the earth been in a new geological epoch, one in which “humans are a force, maybe the force, shaping the planet.”).

[17] Krakoff, supra note 12, at 98 (“The global atmosphere is a common-pool resource, and since industrialization, agents have acted in their rational self-interest by emitting greenhouse gases in order to benefit from inexpensive energy. Even now that we know about the market’s failure to internalize the cost of greenhouse gas emissions, rational actors will still opt for cheap energy over reductions in greenhouse gas emissions because of the possibility that a defector could undermine the regime of curbing emissions.”).

[18] See After Nature, supra note 16, at 2 (“The Anthropocene finds its most radical expression in our acknowledgment that the familiar divide between people and the natural world is no longer useful or accurate.”).

[19] See id. at 46 (arguing that “natural catastrophe amplifies existing inequality” because the wealthy are better able to absorb and acclimate to the harmful consequences of man-made ecological damage).

[20] See Jedidiah Purdy, Our Place in the World: A New Relationship for Environmental Ethics and Law, 62 Duke L.J. 857, 871-77 (2013) [hereinafter Our Place in the World] (explaining how philosophical accounts of environmental ethics in the 1970’s struggled to produce an agreed-upon basis for valuing nature that could be translated into law, thereby leading policymakers to turn to the economic theories that have defined environmental law for last four decades).

[21] See Linda Malone, Exercising Environmental Human Rights and Remedies in the United Nations System, 27 Wm.& Mary Envtl. L. & Pol’y Rev. 365, 365 (2002) (“Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, and/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as the human rights violation.”).

[22] See Our Place in the World, supra note 20, at 883 (arguing that the divide that has grown between environmental ethics and environmental law over the last forty years demands that the law reshape itself to reflect our creative ethical capacity).

[23] See After Nature, supra note 16, at 262 (“[E]verything is connected to everything else, often in subtle and hidden ways, and any attempt to master the whole from a single standpoint is hubris and likely to turn out badly.”).

[24] Id. at 42.

[25] http://www.wmelpr.org/wp-content/uploads/2016/10/An-Ecology-of-Liberation-ELRS-submission.pdf

[26] For an insightful and detailed analysis of the evolution of American views on the value of the environment over the country’s history, see generally Jedidiah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 Harv. Envtl. L. Rev. 169 (2012).

[27] Our Place in the World, supra note 20, at 871.

[28] Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, 32 Ecology L.Q. 113, 132 (2005).

[29] National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)

(codified as amended at 42 U.S.C. §§ 4321–4347).

[30] Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42

U.S.C. §§ 7401–7671).

[31] Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33

U.S.C. §§ 1251–1387).

[32] Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 844 (1973) (codified as amended at 16 U.S.C. §§ 1531-1534).

[33] See Willis Jenkins, Ecologies of Grace: Environmental Ethics and Christian Theology 31-32 (2008) (arguing that unlike biomedical ethics or business ethics, environmental ethics it has no “discernible social practices” upon which to base its inquiries).

[34] See id. at 41.

[35] Id. at 42. Jenkins identifies two other secular strategies besides nature’s standing: the strategy of moral agency, id. at 46-51, and the strategy of ecological subjectivity, id. at 51-57. I have chosen to concentrate on the strategy of nature’s standing because its efforts to correlate “normative obligations with the moral status of the nonhuman world” typically set it in direct opposition to the “blinkered economic rationalism of many public policy justifications.” Id. at 42.

[36] Our Place in the World, supra note 20, at 871.

[37] Id. at 872.

[38] John O’Neill, The Varieties of Intrinsic Virtue, 73 Monist 119, 119 (1992); see also Gary Varner, Biocentric Individualism, in Environmental Ethics 90, 92 (David Schmidtz & Elizabeth Willot eds., 2d ed. 2012) (“Intrinsic value is the value something has independently of its relationships to other things. If a thing has intrinsic value, then its existence (flourishing, etc.) makes the world a better place, independently of its value to anything else or any other entity’s awareness of it.”).

[39] Arne Naess, The Shallow and the Deep, Long-Range Ecology Movements, 16 Inquiry 95 (1973), reprinted in Environmental Ethics, supra note 37, at 129, 129 (contrasting “the Shallow Ecology movement,” which Naess describes as the “[f]ight against pollution and resource depletion” and having as its central objective “the health and affluence of people in the developed countries,” with “the Deep Ecology movement,” which he describes as “rejection of the man-in-environment image in favor of the relational, total-field image.”).

[40] Our Place in the World, supra note 20, at 871; see also Jenkins, supra note 33, at 42-43 (comparing J. Baird Callicott’s view of nature’s intrinsic value, which could generally be described as “biocentric,” with that of Holmes Rolston, which could generally be described as “ecocentric.”).

[41] Our Place in the World, supra note 20, at 872; see also, Jenkins, supra note 33, at 43 (identifying Eric Katz, Tom Regan, and Peter Singer as environmental ethicists who advocate for nature’s moral standing while rejecting intrinsic value theories).

[42] O’Neill, supra note 37, at 119.

[43] See Jenkins, supra note 33, at 19 (identifying these three theological strategies as “ecojustice,” “stewardship,” and “spiritual ecologies”).

[44] Id. at 61.

[45] See id. at 19-20 (explaining that the correspondence of Roman Catholicism, Protestantism, and Eastern Orthodoxy with ecojustice, stewardship, and ecological spirituality, respectively, are only tendencies and not hard rules).

[46] Id. at 64.

[47] Id. at 62.

[48] See Michael Moody, Caring for Creation: Environmental Advocacy by Mainline Protestant Organizations, in The Quiet Hand of God 237, 239 (Robert Wuthnow & John Evans eds., 2002) (reporting that the term “ecojustice” was either coined or “made its public debut” in a 1972 strategic planning group of the American Baptist Churches).

[49] Compare Boff & Boff, supra note 8, at 14-15 (describing “pastoral theology” as a “middle level” of liberation theology that works as a “progressively integrating factor among pastors, theologians, and lay persons, all linked together around the same axis: their liberative mission.”), with Jenkins, supra note 33, at 62 (“In order to make environmental issues part of its churches’ enduring pastoral concerns, [ecojustice] redeployed Christian notions of justice to make appropriate response to nature fit with the rationale for existing humanitarian mission commitments.”).

[50] Moody, supra note 47, at 240.

[51] Jenkins, supra note 33, at 63.

[52] Learn About Environmental Justice, U.S. Environmental Protection Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Mar. 29, 2016). Alternatively, Julia B. Latham Worsham characterizes environmental justice as founded upon “the concept that minorities bear a disproportionate percentage of environmental burdens.” Julia B. Latham Worsham, Disparate Impact Lawsuits under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Envtl. Aff. L. Rev. 631, 633.

[53] See Worsham, supra note 51, at 633-34 (crediting either a 1979 Texas environmental rights suit or a 1982 citizens’ protest “modeled after the civil rights protests of the 1960s” in Warren County, North Carolina against a polychlorinated biphenyl landfill as the root of the modern environmental justice movement). Worsham, though writing from a legal perspective, appears vulnerable to a criticism Jenkins levels against “[s]ociological observers of [environmental justice],” namely that they “tend to skip [environmental justice’s] associations with religion.” Willis Jenkins, The Future of Ethics: Sustainability, Social Justice, and Religious Creativity 206 (2013). Case in point, Jenkins notes that when the North Carolina citizens began their protest, “they marched out from a church,” see id., a fact Worsham omits.

[54] See Moody, supra note 47, at 239 (“[Ecojustice] predates—by more than a decade—the widespread recognition within the secular environmental movement of the importance of highlighting justice connections.”).

[55] See Videotape: What is “Environmental Justice”?, And Justice For All: Current Developments in Environmental Justice (Wm. & Mary Envtl. L. & Pol’y Rev. 2016), http://scholarship.law.wm.edu/elprsymposium/2016/ environmentaljustice/2/.

[56] Exec. Order No. 12,898, 3 C.F.R. 859 (1995), reprinted in 42 U.S.C. § 4321 (1994).

[57] Richard Bohannon & Kevin O’Brien, Saving the World (and the People in It, Too): Religion in Eco-Justice and Environmental Justice, in Inherited Land: The Changing Grounds of Religion and Ecology (2011) (ebook), http://web.a.ebscohost.com/ehost/detail?sid=fdb6238f-f577-44f4-b171-b78afeec536e@sessionmgr4003&vid=1#AN=914925&db=nlebk [http://search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=914925&site=ehost-live].

[58] Jenkins, supra note 33, at 64.

[59] Id. at 63.

[60] Id.

[61] See Bohannon & O’Brien, supra note 56 (relying on the “Principles of Environmental Justice” developed by the First National People of Color Environmental Leadership Summit in 1991, “which have been used ever since to summarize the moral impulse behind the movement,” to argue that environmental justice does not “explicitly advocate on behalf of the nonhuman world for its own sake—the ‘health’ of the nonhuman world is implicitly for the benefit of ‘present and future generations’ of humans”).

[62] See id.

[63] Id.

[64] Id.

[65] See id. (“Those of us . . . who do not come from oppressed communities must be cautious about claiming that we can fully understand or summarize the interests and ideas of environmental justice activists, and we must allow these activists to speak for themselves.”)

[66] Jenkins, supra note 33, at 55 (“By insisting on fair distribution of environmental risks and benefits, environmental justice directs attention to inescapable ecological components of a decent human life.”).

[67] See Our Place in the World, supra note 20, at 873 (“Conceptually, the issue of intrinsic versus [instrumental] value rapidly produces a dilemma, an irresolvable standoff between anthropocentric and biocentric perspectives.”).

[68] Id.

[69] See id. (“The mind is the theater, so to speak, in which we experience value; but that does not make the mind value’s source, any more than it creates the other people with whom we have relationships.”). Purdy identifies a potential resolution to this problem in the concept of uncanniness, which will be explored in Part IV.

[70] Id. at 874.

[71] Id.

[72] See id. at 875 (“Here the choice between the alternatives does have relevance to action, but each option is deeply unsatisfactory.”).

[73] See supra page 8.

[74] Our Place in the World, supra note 20, at 876.

[75] Varner, supra note 37, at 91.

[76] Our Place in the World, supra note 20, at 876.

[77] See Elliott Sober, Philosophical Problems for Environmentalism, in Environmental Ethics, supra note 37, at 133 (making this same point using different species of whales as an example).

[78] Our Place in the World, supra note 20 at 876.

[79] Id. at 875.

[80] Id.

[81] See Bohannon & O’Brien, supra note 56.

[82] See Sober, supra note 76, at 133 (explaining the dilemma of a holistic environmental ethic).

[83] Our Place in the World, supra note 20, at 875.

[84] Sober, supra note 76, at 137; see also After Nature, supra note 16, at 240 (making a similar point by asserting that human exploitation of domesticated animals should be no more “immune to ethical scrutiny” because humans “co-evolved” with those species than “slavery and gender segregation should be immune because they are widespread in human history.”).

[85] See Our Place in the World, supra note 20, at 877.

[86] See Jenkins, supra note 33, at 49 (quoting Bronislaw Szerszynski, Wallace Heim & Claire Waterton, Nature Performed: Environment, Culture and Performance 1 (2003)) (“[P]ractical rationality . . . . ‘is being driven not just by intellectual curiosity but also by an increasing sense that existing ways of thinking about nature are inadequate to practical needs,’ that in order to describe the dynamic relations among environment and society, one is ‘not well served by the noun-dominated languages used for describing both.’”).

[87] Our Place in the World, supra note 20, at 863 (identifying the crucibles as “agricultural and food systems, the ethical status of animals, and climate change”).

[88] After Nature, supra note 16, at 241.

[89] Gustavo Gutiérrez, Toward A New Method: Theology and Liberation, in Gustavo Gutiérrez: Essential Writings 23, 30 (James B. Nickoloff ed., 1996).

[90] Matthew 22:21.

WWII-Era Government Contractor Indemnification Clauses Come to the Fore in CERCLA Litigation as Other Grounds to Shift Costs to the Government Narrow

WWII-Era Government Contractor Indemnification Clauses Come to the Fore in CERCLA Litigation as Other Grounds to Shift Costs to the Government Narrow

By Hume Ross, Staff Member Georgetown Environmental Law Review This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. I. Introduction Before World War II, Japanese Admiral Yamamoto wrote: “Because I have seen the motor industry in Detroit […]