Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Justice Scalia and Environmental Law, Part II: Takings and Administrative Law

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focused on standing. This short piece addresses his impact on takings and Administrative Law.

Takings

Modern takings jurisprudence is also Justice Scalia’s handiwork. He, more than any other Justice, was inclined to find government regulation – particularly that which serves environmental ends – “goes too far” and thus constitutes a regulatory taking warranting just compensation. In Lucas v. South Carolina Coastal Council, he held for the majority that a state law designed to protect barrier islands constituted a compensable taking when it had the effect of depriving a developer of what he considered to be all economic use. And in Nollan v. California Coastal Commission, Justice Scalia—again for the majority—held that a requirement that a shorefront property owner maintain a public pathway to a public beach was “illogical” and constituted a compensable taking.

Justice Scalia’s jurisprudence makes policymakers think twice about regulating in the environmental realm.

Deference to Agency Rulemaking

Justice Scalia was consistently skeptical of environmentally-protective interpretations by federal agencies, especially those by EPA. In Rapanos v. EPA, writing for a plurality of the Supreme Court, he rejected the Army Corps of Engineers’ interpretation of the Clean Water Act’s term “navigable waters” to include temporally-saturated areas, instead insisting on a direct surface water connection to a water that is “navigable in fact.” Likewise, he joined the Court’s decision in SWANCC v. Army Corps of Engineers, holding that Congress did not intend to permit the Corps and EPA to regulate dredging and filling of isolated ponds and wetlands that are not adjacent to otherwise navigable waters, under what was known as the “migratory bird rule.” Most recently, in Michigan v. EPA, he wrote for the majority to invalidate EPA’s mercury and toxics rule, finding it unreasonable “to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.” And shortly before he died, he joined four other justices to order a stay of EPA’s Clean Power Plan.

Yet Scalia was more inclined to defer to EPA interpretations that were less environment-minded. For instance, in Entergy v. Riverkeeper, he wrote on behalf of the majority to uphold EPA’s use of cost-benefit analysis in assessing “best technology available” for minimizing the adverse environmental effects of cooling water intake structures under section 316(b) of the Clean Water Act. Likewise, he dissented in EPA’s favor in Massachusetts v. EPA, voting to uphold the agency’s decision at that point that greenhouse gases are not “air pollutants” under the Clean Air Act.

Early during his tenure on the bench, however, Justice Scalia seemed more inclined to endorse the edict from Chevron U.S.A., Inc. v. NRDC, to defer to “reasonable” statutory interpretations from mission-oriented agencies. For example, in EDF v. Chicago, Scalia on behalf of the Court upheld EPA’s interpretation under the Resource Conservation and Recovery Act that “solid waste” includes ash from municipal waste incinerators. And then in dissent he decried the result in U.S. v. Mead Corp., where the Court strayed from the Chevron standard by granting only “power to persuade” as opposed to “reasonableness” deference to agency interpretations that are not the result of a deliberative process.

Last, Whitman v. American Trucking stands as a bit of an outlier to Scalia’s seeming antipathy to EPA’s reach, in which his majority opinion upheld as an “intelligible principle” under the non-delegation doctrine Congress having EPA establish national ambient air quality standards that are “requisite” to protect human health and the environment.

Justice Scalia’s views on deference to rulemaking gave agencies – except for EPA – more leeway. For further reading on these subjects, please see Principles of Constitutional Environmental Law.

Justice Scalia and Environmental Law, Part I: Standing

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focuses on standing. Part II (a forthcoming post) then turns to takings and Administrative Law.

Standing 

Justice Scalia’s most lasting legacy on environmental law is how his jurisprudence makes it more difficult for environmental plaintiffs to demonstrate constitutional standing under Article III of the Constitution. Since at least Sierra Club v. Morton, plaintiffs needed to show that they possessed an “injury in fact,” which could be commercial, economic, aesthetic, or environmental. Raising the bar, Scalia stated that plaintiffs must demonstrate at an “irreducible minimum”: (1) imminent and concrete “injury-in-fact” that is (2) fairly “traceable” to the defendant’s actions, and (3) “redressible” by the court. Applying this standard, Scalia found standing lacking in Lujan v. National Wildlife Federation, because using land “in the vicinity of” affected federal land wasn’t sufficient, and in Lujan v. Defenders of Wildlife, due to the absence of what has come to be known as “tickets in hand” to return to the places of alleged injury. Dissenting in Defenders of Wildlife, Justice Blackmun, bemoaned Scalia’s new requirements as “a slash-and-burn expedition through the law of environmental standing.”

Justice Scalia then dissented in Friends of the Earth v. Laidlaw Environmental Services v. EPA, when the majority held that it is injury to the person, and not the environment, that matters in standing analysis. There, he complained that the majority had proceeded “to marry private wrong with public remedy in a union that violates traditional principles of federal standing—thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.”

Justice Scalia was skeptical that the effects of climate change could ever support standing, even for states. Speaking from his dissent in Massachusetts v. EPA, Scalia would have found that petitioning states lacked standing to challenge the U.S. Environmental Protection Agency’s (EPA’s) failure to institute rulemaking to regulate greenhouse gas emissions from stationary sources, thereby rejecting that states are entitled to “special solicitude” in standing analysis.

Justice Scalia was more inclined to find standing when litigants challenged environmentally-protective agency action. For example, writing for a plurality, he found that alleged injury to economic interests to water districts and to corporate ranching and agricultural interests was sufficient injury in Bennett v. Spear. Moreover, he held that homeowners possessed both standing and a cause of action to challenge an EPA-issued but not enforced administrative compliance order in Sackett v. EPA.

Concur or not, Justice Scalia’s standing test took hold and stands firm. For further reading on this subject, please see Principles of Constitutional Environmental Law.

Winds of Change in China’s National People’s Congress

Posted on April 18, 2014 by Robert Percival

Appalling environmental conditions that have accompanied China’s rapid growth have been described on Chinese social media as “postapocalyptic,” “terrifying,” and “beyond belief.”  During the last year, air pollution in several Chinese cities became so horrendous at times that road travel, schools, construction projects, and airports temporarily were shut down. Epidemiologists estimate that 1.2 million Chinese die prematurely each year from exposure to air pollution.  Due to widespread water pollution, tap water is not safe to drink, even in luxury hotels.  Pollution is estimated to cost the Chinese economy more than 3.5% of gross domestic product annually. 

Rising public demand to clean up the environment has caught the attention of China’s Communist Party leadership.  In an address at the opening of the annual session of the National People’s Congress (NPC) last month, Chinese Premier Li Keqiang declared “war on pollution.” Chinese authorities agree that enforcement is the number one problem with their environmental laws. Bie Tao, Deputy Director General of Policies and Regulations of MEP, cited estimates that half of all regulated facilities in China violate the law and that pollution in China would be 70% less than it currently is if polluters were in full compliance with the law. 

Problems with enforcement of China’s environmental laws run deep.   China’s regulatory system is highly decentralized with the nation’s Ministry of Environmental Protection (MEP) less than a fiftieth the size of the U.S. EPA for a country with more than three times as many people than the U.S.   Enforcement problems are compounded by local corruption, small penalties for violations, the lack of an independent judiciary and the absence of a long tradition of respect for the rule of law.

As Chinese authorities struggle to increase the enforceability of their environmental laws, two ACOEL members were given an unusual opportunity last month to peak into a window on the NPC’s legislative processes.  On March 19, James A. Holtkamp and I were invited to appear before the Legislative Affairs Commission of the NPC’s Standing Committee in Beijing along with David Pettit, a senior attorney with the Los Angeles office of the Natural Resources Defense Council (NRDC).   Billed as a “Green Dialogue,” the event was an extraordinary effort to obtain U.S. expert input to help resolve disagreements within the NPC on proposed amendments to make China’s basic Environmental Protection Law more enforceable. 

Representatives of the NPC’s Standing Committee and MEP presented us with six sets of questions concerning U.S. enforcement procedures and policies.  Many were directed at understanding how penalties for environmental violations are determined in the U.S.  A proposal to provide that maximum fines for environmental violations in China be calculated in part based on the number of days the violation has occurred was one issue that had created disagreement within the NPC.  We noted that this has become a fundamental principle of U.S. pollution control law and that it provides a powerful incentive for violators promptly to stop and correct violations.  We emphasized the importance of monitoring and reporting requirements in environmental permits.  We also suggested that China should consider adopting a policy that enforcement actions should recoup at least the economic benefit of the violation to ensure that companies do not profit from their violations.  This has been EPA’s long-standing policy and there appears to be some interest in adopting such a policy in China.

Chinese authorities are moving toward requiring greater transparency from polluters.  Beginning on January 1, 2014, they mandated that China’s 15,000 largest companies provide the public with continuous data concerning their air and water emissions, something that would have been unthinkable just a few short years ago. By opening up a “Green Dialogue” on U.S. enforcement practices, China’s legislators are exhibiting a healthy appetite for entertaining new ideas to improve the effectiveness of their environmental laws.  Our U.S. expert panel consisting of an industry practitioner, a public interest lawyer, and an academic apparently proved to be a persuasive coalition for we have learned that many of our recommendations are being incorporated into the new draft of China’s basic Environmental Law.

Meet the IUCN Academy of Environmental Law

Posted on July 11, 2013 by Robert Percival

The year 2013 marks the tenth anniversary of the establishment of a global network of legal educators dedicated to improving the teaching of environmental law and promoting its conceptual development throughout the world.  The IUCN Academy of Environmental Law (“the Academy”) was created in 2003 by a small group environmental law professors from several countries, with the endorsement of the International Union for Conservation of Nature.  Today the Academy has 168 institutional members from 53 countries in all corners of the globe.  Pace Professor Nicholas Robinson, a fellow member of the American College of Environmental Lawyers, was the moving force behind the founding of the Academy.  I am most grateful to him for recruiting me to be one of its founding members, and I have been delighted to participate in the Academy’s rapid growth.

Each year the IUCN Academy holds a Colloquium in a different part of the world at which the top academic experts in environmental law from all over the world gather to examine developments in the field.  From June 24-28, 2013, the 11th Colloquium of the Academy was held at the University of Waikato in Hamilton, New Zealand.  Despite the remote location, more than 200 environmental experts from 30 countries participated in this event in person. A particular highlight of the colloquium was a plenary session on access to justice that featured presentations from some of the world’s top judges. 

The annual distinguished scholar lecture at this year’s colloquium was presented by Mas Achmad Santosa, Deputy Minister and Deputy Head of the President’s Delivery Unit for Development Monitoring & Oversight of the Republic of Indonesia.  He discussed how Indonesian environmental officials are using satellite monitoring technology to locate the sources of massive fires in Sumatran palm oil plantations that have blanketed Singapore and Malaysia with record air pollution.  Santosa was remarkably candid in discussing the challenges corruption poses to environmental enforcement in the developing world. 

In addition to the distinguished scholar lecture, many other environmental experts make presentations at the colloquia.  This year more than 160 presentations were made at the University of Waikato gathering.  Abstracts and PowerPoint slides of the presentations can be viewed here. In recent years graduate students have been participating in the colloquia in greater numbers.  Five of my top Maryland environmental law students presented papers at the University of Waikato gathering last month on topics as diverse as adaptation to climate change, the challenge of phasing out fossil fuel subsidies in different countries, legal strategies for holding multinational corporations accountable for environmental harm, and trans-national differences in risk analysis.

The colloquia also feature day-long workshops on environmental law research and the teaching of environmental law.  The Academy has devoted considerable resources to improving the capacity of universities to teach environmental law.  Week-long “Training the Teachers” courses have been developed by Academy faculty and are presented regularly in developing countries. The Basic Course, which addresses the needs of professors who are new to teaching environmental law, covers the scope and substance of environmental law and it explores teaching methodologies and approaches to student assessment. The Advanced Course seeks to prepare senior environmental law professors to deliver the Basic Course to junior colleagues.  During summer 2013 these courses will be given to a group of Chinese professors in Chongqing, China. 

To keep the global community updated on the latest developments in environmental law, the Academy publishes an online journal that is updated twice a year.  This e-journal includes articles, book reviews, and reports on developments in environmental law in many different countries.  The latest issue of this e-journal includes 30 different country reports, each authored by a local expert.

The IUCN Academy of Environmental Law has helped create a truly global network of academic experts specializing in environmental law.  They will gather again next summer for the Academy’s 12th Colloquium at the Universitat of Rovira y Virgili in Tarragona, Spain from June 30-July 5, 2014.

The Ongoing Legacy of Rachel Carson’s Silent Spring

Posted on October 3, 2012 by Drew Ernst

2012 marks the 50th anniversary of Silent Spring, one of the first books to point out the environmental dangers associated with pursuing technological and scientific advances without fully understanding their possible negative side effects. Silent Spring was a revolutionary environmental exposé published in 1962 by an unassuming author, Rachel Carson.  Her book inspired a powerful social movement that continues to impact environmental law and American society today.

A scientist and ecologist, Carson was a former editor of U.S. Fish and Wildlife Service publications and a feature writer for the Baltimore Sun who eventually dedicated herself to writing books that taught people about the fragile beauty of Earth’s ecosystem. Silent Spring was written in the wake of post-war lethargy, new affluence and during a time when Americans were confident science had all the answers.  Disturbed by the proliferate use of synthetic chemical pesticides after WWII, Carson challenged this practice and sounded a loud warning about the use of chemical pesticides, a reminder of the responsibility of science and the limits of technological progress.

Critics called Carson an alarmist, and Silent Spring was met with intense rebuttals from the scientific establishment and some major industries.  Regardless, Carson was steadfast in her resolve to show the need for new environmental policies and regulations necessary to protect human health and the environment.

Silent Spring is proof of the power of public opinion, and despite scientific skeptics, the book sparked a major environmental revolution.  Carson’s exhaustive environmental calculations in Silent Spring brought to light the fact that people were subjecting themselves to slow poisoning by the misuse of chemical pesticides and toxic pollutants that take more than 15 years to break down. In addition, she exposed the fact that these chemicals could cause irreparable liver and nervous system damage, cancer and reproductive issues. 

Carson’s testimony before Congress in 1963 later served as the catalyst for the ban on the domestic production of DDT and sparked a grassroots movement demanding better environmental protection and increased regulation, resulting in the formation of the U.S. Environmental Protection Agency (EPA).

Sadly Carson was not able to enjoy the fruits of her labor. She died after a long battle with breast cancer in 1964, just 18 months after her testimony before Congress.  However, many celebrate the impact of her work on April 22 each year on Earth Day.

So after 50 years, how much has changed?  Today, there is federal regulation of  everything from coastal development to farming practices. Environmental protection includes policies concerning natural resources, human health, economic growth, energy, transportation, agriculture, industry and international trade and all parts of society.   Many would say there is over regulation today.  In many cases, I agree.  However as Rachel Carson showed us, there is a need for some regulation, if just to protect us from ourselves.

The American College of Environmental Lawyers Announces Newly Elected Fellows for 2012

Posted on August 24, 2012 by Blogmaster

The American College of Environmental Lawyers is proud to announce its newly elected Fellows for the year 2012. Each individual was selected for his/her distinguished experience and high standards in the practice of environmental law and will be officially inducted into the College at its Annual Meeting in October.

ACOEL President, Brad Marten of Marten Law PLLC, stated, “With the election of these 26 lawyers, the College includes a select group of the top lawyers in government service, academia, the NGO community and private practice, drawn from 48 states. These individuals, chosen by their peers, have earned this recognition based on achievements over a minimum 15 year period, in which they have led the field in all areas of environmental law and policy. The College is honored to have this distinguished class join its ranks.”

The newly elected Fellows include:

- Linda Benfield, Foley & Lardner LLP (WI)
- LeAnne Burnett, Crowe & Dunlevy (OK)
- Dean Calland, Babst Calland (PA)
- John Dernbach, Widener  University (PA)
- Parthenia Evans, Stinson Morrison Hecker LLP (MO)
- Eric Fjelstad, Perkins Coie (AK)
- Scott Fulton, US EPA (DC)
- Kevin Gaynor, Vinson & Elkins LLP (DC)
- Lisa Heinzerling, Georgetown University Law Center (DC)
- Sheila Slocum Hollis, Duane Morris LLP (DC)
- James Holtkamp, Holland & Hart LLP (UT)
- Michael Last, Rackemann, Sawyer & Brewster (MA)
- Kenneth Mack, Fox Rothschild LLP (NJ)
- John Manard, Jr., Phelps Dunbar (LA)
- Steven McKinney, Balch & Bingham LLP (AL)
- Lisa Woods Munger, Goodsill Anderson Quinn & Stifel (HI)
- James Palmer, Jr., Butler, Snow, O’Mara, Stevens & Cannada, PLLC (MS)
- Robert Percival, University of Maryland School of Law (MD)
- Gail Port, Proskauer Rose LLP (NY)
- Jim Price, Spencer Fane Britt & Browne LLP (MO)
- Nicholas Robinson, Pace University School of Law (NY)
- Thomas Sansonetti, Holland & Hart LLP (WY)
- J. Gustave Speth, Vermont Law School (VT)
- Donald Stever, K&L Gates LLP (NY)
- David Uhlmann, University of Michigan School of Law (MI)
- Bruce White, Barnes & Thornburg LLP (IL)

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The American College of Environmental Lawyers is a professional association of distinguished lawyers who practice in the field of environmental law.  Membership is by invitation & members are recognized by their peers as preeminent in their field.  ACOEL members are dedicated to: maintaining & improving the ethical practice of environmental law; the administration of justice; and the development of environmental law at both the state & federal level.

Troubled Times in Legal Education

Posted on April 23, 2012 by Irma S. Russell

The topic I have chosen for this blog may be a surprise to some.  It is not about a late-breaking environmental case--though we have had a couple in Montana recently.  It does not analyze a new regulation or explain a newly-discovered risk of industry practice.  It is not about the new federal guidance (such as the National Forest System Land Management Plan).  Rather, my focus is on the recent challenges in legal education.  While this topic is not substantively environmental, it will have an impact on the practice of environmental law in the not-too-distant future.

Just as we need a rational energy policy, we need a system of legal education that serves the public good.  We need to study seriously our nation’s policies on supporting and delivering legal education.  The importance of rule of law and lawyers to our democracy can hardly be overstated.  Public support for education in general and legal education in particular has declined over the last two decades to the point that people who want to make law their life’s work are facing an uphill battle and society is facing a situation in which no one except the wealthy can afford legal representation.

The challenges facing legal education today have been the subject of numerous recent articles.  Rising debt burdens law school graduates as they search for jobs in a tight market.  In January, the ABA Journal reported that America's law students borrowed at least $3.7 billion in 2010.  In [that same year], 85 percent of law graduates from ABA-accredited schools had an average debt load of $98,500, according to data collected from law schools by U.S. News & World Report.  At 29 schools, that amount exceeded $120,000.  In contrast, only 68 percent of those grads reported employment in positions that require a JD nine months after graduation.  Less than 51 percent found employment in private law firms.  The influx of so many law school graduates--44,258 in 2010 alone, according to the ABA--into a declining job market has created serious repercussions.   

In addition to facing high debt loads and fewer job opportunities, law graduates are confronted by criticism that law school is too theoretical and does not fully prepare graduates for practice.  Jeffrey W. Carr, the general counsel of FMC Technologies, stated in a New York Times article, “The fundamental issue is that law schools are producing people who are not capable of being counselors.  They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”  Over the last two decades, schools have added offerings in clinics, externships, and simulations to introduce more experiential learning into their curriculum.  Today, the vast majority of the nation's 200 law schools provide students with some kind of clinical training.  Nevertheless, there is no denying that new law graduates continue to need on-the-job training and mentoring by employers and colleagues before they are ready to fully embrace all aspects of the practice.

The American College of Environmental Lawyers (ACOEL) has been looking for innovative ways to fulfill its service mission to the profession.  The ideas include working with law faculty to survey the skills and knowledge new lawyers need to succeed in our profession and to make recommendations for changes in law schools.  I agree whole-heartedly with this and other innovative suggestions for developing our service and improving the profession, but I want to suggest an additional (old) avenue for this service: mentoring.

Mentoring is important for many reasons, and it serves as a way of bridging the gap in knowledge between the theory and practice in the law.  Mentoring is also an opportunity for lawyers to help others gain insight and judgment.  ACOEL members and other environmental practitioners have numerous opportunities to assist students and young lawyers.  Now, more than ever, there is a need for passionate, competent lawyers in environmental law and related fields, and these new lawyers will need mentors.  They will need mentors to be able to serve their clients and also to achieve the sense of serving the public good – one of the principal reasons students enrolled in law school in the first place. 

Practitioners can contribute in a variety of ways.  If you see a lack of mentoring in today's legal profession and want to contribute to this need, I hope you will reach out to a law school near you and offer to help mentor students and newly licensed lawyers.  I also hope you will consider supporting your own law school or others--particularly those that focus on environmental law--to help ensure the next generation of lawyers has the tools and opportunities to flourish in the practice of environmental law and to serve the public in this crucial field.

Bird Brain Idea?

Posted on January 26, 2012 by Stephen Herrmann

Last summer, the U.S. Department of Justice, acting on allegations made by agents of the U.S. Fish and Wildlife Service, brought criminal indictments against three oil companies operating oil fields in North Dakota, charging them with violating the Migratory Bird Treaty Act for acts resulting in the killing in the aggregate four Mallards, one North Pintail, one Red-Neck Duck and a Say’s Phoebe.  The birds allegedly fell victim to the oil companies “reserve pits” -- basically big holes dug into the ground to collect waste water and mud from drilling operations.  When such pits are not properly netted, birds can get into these ponds, get covered in muck and die.

In dismissing the government’s case, the United States District Court for the District of North Dakota stated the Migratory Bird Treaty Act of 1918 is far too vague to justify such indictments.  If inadvertently killing birds and drilling operations ought to be criminalized,  Congress must state so explicitly.  If the Act’s concepts of “take” or “kill” were read to prohibit any activity that could accidentally result in a dead migratory bird many every day activities could be criminally prosecuted such as “cutting brush and trees, and planting and harvesting crops, driving a vehicle, owning a building with windows or owning a cat.”

According to the U.S. Fish and Wildlife Service, here are some estimates on how many birds die from crashes involving: 
                     Windows                                 100 million killed
                     Communication Towers        5-50 million killed
                     Power Lines                            10,000 to 174 million killed
                     Cars                                         60 million killed
                     Windmills                               39,000 killed

Even for those of us, bird lovers and hunter, who support efforts to save migratory birds, it is hard to disagree that if the court were to decide otherwise  “many every day activities become unlawful -- and subject to criminal sanctions -- when they cause the death of pigeons, starlings and other common birds.”  Such prosecutorial actions fuel resistance to proper enforcement of environmental laws.