Law


To what extent should environmentalists and businesses compromise their goals?  The NY Times Green Blog argues that their are great benefits to environmental compromise, and it can be especially effective at the local level, providing some examples.  According to the blog, “The common threads: all the outcomes had clear environmental benefits and all were achieved by finding enough common ground to satisfy everyone’s basic aims.  Sort of what Congress used to do.”  Whatever the overall merits of individual compromises, in teaching law students, I think we should remember to convey some basic points.

(1) Non-federal, local and regional solutions to environmental problems exist.

(2) Non-litigation solutions exist.

(3) Trade-offs exists, especially if transaction costs can be kept low (Coase would be proud) or where solutions both help industry or save money, and protect the environment.

(4) Understanding the reality of American energy demands and development, and when one should be willing to except second-best solutions.  If one views oil demand or some development as inevitable, decide when compromise is necessary so total ecological losses do not occur.

(5) Avoiding animosity and winner-take-all scenarios.  See above.  And friendly engagement and discussion can be productive, especially when people come from the same community.

(6) View point sharing.  Compromise can be better reached when there is greater understanding environmental values, business interests and how technology is used.

We are witnessing the demise of American politics, and the end of politicians who can win a race on hard work alone.  With the Supreme Court’s  decision in Citizen United that removed restraints on corporations from financing federal political campaigns, the huge increase in spending in state judicial campaigns (which also harms judicial independence), and the astronomical somes of money being spent in statewide races, the politician that goes door-to-door, wins on ideas alone, and trys to meet people and build relationships is slowing departing the American political scene, unless he or she has a lot of financial backing to boot.  The President of the United States, Democrat Barack Obama, did not accept spending limits and federal financing during the 2008 election, and the NY Times reports that, in an effort to be the U.S. Senator from Connecticut, former World Wrestling Executive Linda McMahon spent $22 million to win yesterday’s Republican primary and is willing to spend an additional $28 million to defeat her Democrat opponent, Attorney General Richard Blumenthal, in the general election.  Legal issues surrounding the First Amendment aside, it is a sad day when money rather than ideas drive the political future of our country.

See the Time Argus article here.

In the last 6 months, China’s energy consumption far outstripped all predictions, causing great concern to the Chinese government as national energy efficiency goals may not be met.   Now look at the response according to the NY Times article “In Crackdown on Energy Use, China to Shut 2,000 Factories.”   My concern, however, is that no programs to close manufacturing and energy facilities will offset the increased energy demands of the Chinese consumer population.

“Flipping” through the 407 pages of America’s $787 billion economic stimulus and recovery package, formerly known as the American Recovery and Reinvestment Act of 2009, one quickly discovers that the legislation is truly overwhelming.   The Act, if properly implemented, could provide the country with the necessary infrastructure and resources to make better ecological choices available for knowledge consumers.  The Act takes great strides toward promoting energy efficiency, as well as renewing the nation’s transportation systems.

In the broad environmental context, the stimulus package focuses first on energy efficiency and conservation, and second transportation and car technology.  The Act provides funding for green investments for such varied locations as the Department of Defense, public housing, residential homes, and schools.  Eight billion dollars has been provided for state and local weatherization efforts and assistance, plus an additional $3.2 billion for local energy improvements, including funding energy audits, energy conservation incentives, energy retrofits; developing advanced building codes; and creating incentives for government purchases of energy efficient installations in buildings, as well as new traffic signals and street lights.  Money is also available to support fuel cell technology, smart grid technology, carbon sequestration, and alternative fuels.

Have these funds be used effectively, providing new choices for individuals such as more mass transit designed with urban geography in mind, faster and more frequent train service, improved and affordable hybrid and plug-in cars, and accessible information about weatherization and affordable building products?

The Act does provide vast sums to improve car technology and the country’s transportation system.  For example, incentives exist to produce better hybrid and plug-in electric vehicle technology. The Act contains $2.4 billion in incentives to buy plug-in hybrids making available $7500 tax credits for individual purchases.  It provides $8 billion for Amtrak and high speed rail, as well as $8.4 billion for public mass transit nationwide.  In doing so, the Act brings immense promise for rail service for all types in the United States.  The President himself has proposed a nationwide high-speed rail plan and has indicated that the stimulus money is just the “first step” of a “long-term project,” suggesting that more money may be forthcoming.  Some rail projects that have been discussed for decades like expansion of the Downeaster from Brunswick and Portland, Maine, to Boston, and high-speed rail from Milwaukee to Madison, Wisconsin, actually might happen after decades of discussion.

However, the Act still allocates far more money (in my view, far too much money) for roads and highways.  Perhaps this should be expected given the amount of resources already allocated to the nation’s highways and automotive industry, and that Americans have grown accustomed to “free” roads.  Train travel might be better if they received the same travel subsidy as the motor vehicle industry.  (I note that China is spending a much larger amount on high-speed rail than the U.S.)

My home state of Vermont will spend 20 times more stimulus money on highways compared to public mass transit. Similarly, of the $529 million in total stimulus money rewarded to my birth state of Wisconsin, nearly 20% will be spent on a single highway project, the reconstruction and expansion of Interstate 94.  Across the country, nearly four times more money will be spent on roads and bridges versus rail service, $28 billion versus $8 billion in the first installment.  The disparity is striking.  It means that the infrastructure of sprawl will persist, and individual energy consumption and the risk of climate change are being hedged against the creation of carbon-free automobile technology.

Most Americans cannot name a single member of the Supreme Court of the United States (SCOTUS) (according to a 2006 Findlaw.com survey), and in my experience (and yes, I’ve done pop quizzes) most law students cannot name all 9 members of the SCOTUS, which has actually become more difficult following the consistency of the Rehnquist Court.    So in an effort to help my students and with today’s swearing in of Elena Kagan, the current nine members of the Supreme Court are:

Chief Justice John Roberts, and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

But lists are boring so here are some predictions, some more bold than others:

(1) Justice Ginsburg’s seat will be the next vacancy on the Court.

(2) Scalia’s seat will be the next to open after Ginsburg’s, causing extensive media and public interest.

(3) Identity politics will continue to play a major role in the nomination process (first Asian-American on the Court?)…..

(4) …..But age (or, better stated, youth) will trump and the next nominee will be born in 1955 or later.

(5) We will see 4 woman on the Supreme Court no later than 2017.

Legal Planet reports on the EPA’s decision to stand by its finding that greenhouse gas emissions cause or contribute to air pollution that may reasonably be expected to endanger public health or welfare.  See here.

In a 2003 issue of Science magazine, Tulane Law School Professor Oliver Houck wrote about the troubled marriage between law and science.  Simply put, law seeks certainty and rules, while science deals with nuanced and complex data that is far from absolute.

Climate chage now is arguably more a political issue than a legal or scientific one, at least to the extent nations struggle with whether they should regulate carbon.  In my College Magazine of the University of Chicago, The Core, I came across the winning essay of the John Crear Foundation Science Writing Prize for College Students entitled “Karl Popper and Antartic Ice: The Climate Debate and Its Problems.”  It is certainly worth a read for it illustrates that difficulty that politics (as law) have in dealing with science.

Would you like to be a Fulbright Scholar in China?  It’s not too late.  I just received the following email.

Dear China Fulbright alumni in law:

We are now a little less than a week away from the August 2 deadline for the 2011-12 Fulbright Scholar awards. My recent review of the number of applications in law awards in China–submitted and pending–indicates that for whatever reason there is a significant drop off in the number of applicants in law–both the regular award and the distinguished lectureship.

I am writing to ask your assistance in bringing these opportunities to the attention of potential applicants as quickly as possible. You are probably thinking if there is enough time to submit an application. There is, because if people start their applications by August 2, they have until August 20 to complete them.

To facilitate your helping us with this late recruitment effort, you will find an announcement below that you can send out to list serves, post on a webpage, put on a bulletin board, etc.

Thanks very much for your help.

Best regards,

David

David B. J. Adams, Ph.D.

Assistant Director of Outreach and Communications

Institute of International Education

Department of Scholar and Professional Programs

Council for International Exchange of Scholars

3007 Tilden St. NW, Suite #5L

Washington, DC 20008-3009

202-686-4021 | 202-3632-3442

dadams@iie.org | www.iie.org/cies

The Fulbright Scholar Program and Humphrey Fellowship Program are administered by the Institute of International Education’s Department of Scholar and Professional Programs, which includes the Council for International Exchange of Scholars and Humphrey divisions.

The competition for 2011-12 Fulbright Scholar grants is now open. The application deadline for most programs is August 2, 2010. U.S. scholars and professionals can learn how to present their credentials at www.iie.org/cies.

________________________________________________________________________________________________

The Fulbright Scholar Program in China offers interesting opportunities for specialists in law, especially specialists in administrative, business, constitutional, investment, tax, civil, intellectual property, comparative and contract law.The grants are for 5 or 10 months with a starting date in late August 2010 or February 2011 for one-semester awards and late August 2011 for academic year awards. Grantees are placed in the top Chinese universities. A unique feature of the China Fulbright Scholar Program is a salary supplement stipend. For more information visit http://catalog.cies.org/viewAward.aspx?n=1089 or contact Gary Garrison at ggarrison@iie.org or 202-686-4019.

Yesterday my family and I hiked up to the top of Big Deer Mountain in Vermont’s New Discovery State Park (which is in Groton State Forest), followed by swimming at Boulder Beach.  I’d highly recommend the hike for kids; mostly flat and dry followed by a fun uphill rock climb.

State Parks are a fantastic resource.  My Natural Resources Law course includes a lot of discussion about National Parks, and we have an annual field trip to Marsh-Billings-Rockefeller National Historic Park in Woodstock, Vermont (the only national park devoted to America’s conservation history).  But this year, I’m going to spend some time on the development of state parks, and how states have determined how to best protect these resources and for what purposes.

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