Today I delivered the Stegner Center Young Scholar Lecture at the University of Utah entitled “The Environment, Food, and Law.”  Turnout was good and everyone has been wonderful in planning my visit.  The talk was about the environmental harms of the modern industrial food system, and discusses the role of informational regulation and structural change (e.g.,  access to different food models) in achieving a more sustainable food system.  This builds upon my forthcoming article in the Stanford Law Environmental Law Journal and my forthcoming piece in the University of Utah’s Journal of Land, Resources & the Environment.

The talk when relatively well, mostly because the topic of food and the environment has grown sexy thanks to folks like Michael Pollan, but the topic also proves challenging given the diverse and complex set of concerns and interests.  What is clear is that on the labeling front, I need to make a better case as to what circumstances eco-labeling is most effective, and, on the structural front, I still need better data on successful initiatives to create a sustainable food systems from a planning and/or implementation perspective.  Finally, I need to think harder about how this all relates to food costs.

Given the complexity of food and ag systems I’m really excited about the new book contract I’ve just signed with co-authors Professor Mary Jane Angelo (University of Florida) and Bill Eubanks entitled “Food, Agriculture Policy, and the Environment: History, Law & Proposals for Reform” (Environmental Law Institute Press, forthcoming 2012).

Tomorrow is talk #2 in Salt Lake City entitled, “Climate Policy and US-China Relations.”  More details here.


Greenwire is reporting that “[t]he leading candidate to become chairman of the House Energy and Commerce Committee today boosted his conservative credentials, laying out a plan to cut federal government spending levels including freezing programs that support energy efficiency retrofits in homes and efficiency labeling for appliances.”  This is unfortunate given the continued democratization of carbon emissions and the need to make such sources more energy efficient (e.g., homes, cars), and the need to influence individual behavior that impacts the envirionments by providing consumers with better information (e.g., eco-labeling, Energy Star labeling).

I have been chosen as the 2010 Stegner Center Distinguished Young Scholar.  See here (page 8).  The announcement is here about my CLE presentation in Salt Lake City on ‘Climate Policy and U.S.-China Relations’ on Nov. 17.  I’ll also be presenting on ‘The Environment, Law, and Food’ on Nov. 16 at the University of Utah S.J. Quinney College of Law next week as well.  See schedules here.

The FDA now has the authority to regulate tobacco and has unveiled new warning labels (under a new 2009 law).  The graphics aren’t nearly as graphic as in other countries (like say Singapore), but it’s a start given the Supreme Court’s decision in FDA v. Brown & Williamson that thwarted the Clinton administration’s attempt to regulate tobacco under the Food, Drug, and Cosmetic Act.

Following the Supreme Court’s ruling in Mass. v. EPA and absent new federal climate legislation, the EPA has begun to create rules to regulate greenhouse gases under the Clean Air Act.  Now Greenwire is reporting that the new Congress may attempt to block EPA climate rules pursued under the Clean Air Act. The article states:

For the Republicans, the first order of business could be legislation to stop EPA from regulating greenhouse gases under the Clean Air Act.  Supporters of measures to block EPA’s climate regulations say it is a foregone conclusion that the Republican-controlled House will pass such a bill during the next session. And in the Senate, where Democrats have spent the past two years bemoaning the rule requiring 60 votes to defeat a filibuster, that threshold appears to be the only thing that could stop such a measure from passing.

The article then provides this useful table. The key question is whether the Dems have 40 votes and the intestinal fortitude to use at least 40 votes to filibuster any attempts to stop the EPA from regulating greenhouse gases.

From Greenwire:

Counting the ‘Ayes’

Based on previous stances and the results of yesterday’s election, a measure to prevent EPA from regulating greenhouse gases under the Clean Air Act would be likely garner at least 57 votes in the Senate during the next session, close observers say. That number includes the entire bloc of 47 Republican senators, the eventual winner of the Senate race in Alaska and at least 9 Democrats who have already pledged their support for one or more proposal. They are:
Voted for Murkowski resolution (4)
Mary Landrieu (D-La.)
Ben Nelson (D-Neb.)
Mark Pryor (D-Ark.)
Jay Rockefeller (D-W.Va.)
Co-sponsored Rockefeller bill (6)
Jay Rockefeller (D-W.Va.)
Kent Conrad (D-N.D.)
Tim Johnson (D-S.D.)
Claire McCaskill (D-Mo.)
Ben Nelson (D-Neb.)
Jim Webb (D-Va.)
Critical newcomers (1)
Joe Manchin (D-W.Va.)

Three members of the Iowa Supreme Court lost re-election races on Tuesday.  Due to the hostility of modern politics (on both sides of the aisle), the significant increase in spending in judicial races, and the need for an independent judiciary that is not subject to political pressure or bias (or the appearance of bias) due to campaign contributions, I have been, for some time, in favor of  appointed state judiciaries.  In 2005, I wrote an article entitled A Call for Change: Improving Judicial Selection Methods.  The American Judicature Society also has an excellent website devoted to state judicial selection methods and relevant research that evaluates potential selection methods.

What’s going on at SSRN?  Over at Prawfsblawg, Dan Markel has a post entitled “SSRN, WTF?” questioning SSRN’s terms of service which allow editing and translation.  Now see below my correspondence with SSRN, since they now want to print and sell my work.  I emailed my colleagues immediately about this, writing: “Colleagues.  See the email below.  I have chosen to opt out of this option for environmental reasons and so as not to upset the apple cart on all my pre-existing copyright agreements that allowed for online publication of my articles on SSRN, but failed to make any mention of actual print distribution.”

My edited (for length) reply to SSRN with their original email below:

I do not want to have my papers on the SSRN eLibrary available for the new hard copy service.

I suspect many others will not want his as well since it may conflict with various copyright agreements.


Jason J. Czarnezki

Professor of Law

Vermont Law School

From: Gregg Gordon []
Sent: Tuesday, October 19, 2010 1:49 PM
Subject: SSRN Announces Forthcoming “Purchase Bound Hard Copy” option for Free PDF documents in SSRN eLibrary

Dear Jason J. Czarnezki,

In response to requests from authors and readers to purchase printed and bound hard copies of papers on SSRN, we will soon release a “Purchase Bound Hard Copy” service for most free PDF files in SSRN’s eLibrary. We have contracted with a New York company to do the printing, binding and shipping.

The price for one or more bound hard copies will be $9.99 per copy plus shipping. Free PDF files with a minimum of 19 pages and a maximum of 240 pages will be eligible for printing. The PDF document will be printed in black and white, “perfect bound” with a glossy color cover, and shipped to United States addresses only. A “Purchase Bound Hard Copy” option will be added on the abstract page of each eligible paper. The existing options, including free One-Click Download, will remain the same, and each purchased hard copy will count as a download.

Any author, who does not want to have his or her free papers in the SSRN eLibrary available for this new service, can opt out at any time by emailing the request to, or calling the SSRN office at 877-SSRNHelp (877.777.6435) in the United States, or +1 585 442 8170 outside of the United States, between 8:30 am and 6 pm Monday through Friday (U.S. Eastern). If you request to opt out of the “Purchase Bound Hard Copy” service, ALL papers that are authored or co-authored by you will not display the “Purchase Bound Hard Copy” option on your abstract page(s). Please notify us by Friday, October 29, 2010 if you do not want your papers included in the initial roll-out of this new service. You may change your participation status at any time in the future.

We hope you will enjoy the convenience of this new service.

Gregg Gordon
Social Science Research Network

See here.  The article states,

The Environmental Protection Agency has approved boosting the amount of ethanol in gasoline for newer vehicles, a victory for grain farmers but a concern for others who worry the corn-based fuel additive could damage some engines and even raise food prices.

Reports the Times.  The activities of Liu Xiaobo, and the government response, were a common topic of conversation in closed settings while we were in China.  This news will make the Chinese government very unhappy.

A student emailed me the article “‘The Buzzard of Backcountry’ Strikes It Rich in National Parks“. It’s about a wealthy real estate developer, Thomas Chapman, who built a luxury home on private land that sits within a national park. (Many plots of private lands are surrounded by national parks and forests.) Some argue that it harms the viewshed and aesthetic value of the park, while others view property rights as paramount. The article states, “With that, Mr. Chapman aims to make a point: Environmentalists and park managers can wring their hands about development tearing up the wild, but unless they’re willing to spend top dollar to preserve that land, they have no claim on it. And if they won’t buy it, he’s perfectly willing to develop it as a private playground for a wealthy buyer.”  The article points out that the federal government has allocated additional funds to buy private lands for preservation.  However, the article fails to point out that the federal government need not buy the land at all, and instead could limit private property rights on lands not owned by the federal government pursuant to the Property Clause of the U.S. Constitution, in the interest of protecting federal lands (see, e.g., Camfield v. U.S., 167 U.S. 518 (1897); Minnesota v. Block, 660 F.2d 1240 (8th Cir. 1981).  The federal limits of the Property Clause have not been tested legislatively to the same extent as the Commerce Clause.  There is no Lopez or Morrison yet in Property Clause jurisprudence.  Given Congress’ concern of overriding private property rights, and environmentalists’ concerns over how the current U.S. Supreme Court would react to sweeping legislation based on the Property Clause, I suspect limitations on private lands in national park boundaries will exist, but not with as strong of limitations as permissible under existing caselaw.

(The article does point out that the president could better preserve much federal land by declaring them national monuments.  West Wing fans know from this episode and my former students know from class that this is done pursuant to the Antiquities Act….my current students will learn this fact this week, unless they read my blog.)

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