Posted on November 8, 2016
The American College of Environmental Lawyers annually presents the Herrmann Environmental Writing Award to the individual who has written and submitted what we judge to be the best article from a student-edited law journal or equivalent publication published by an accredited U.S. law school, including an article, note, case comment or essay. The winning piece is selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law.
The award is named in honor of our College colleague Stephen E. Herrmann, who is a distinguished, nationally recognized environmental lawyer and who has – for some forty years – been a leader in the area of environmental law as a practitioner, teacher and writer.
This year, there were twenty-nine separate entries for the Herrmann Award. A panel of ACOEL members reviewed and evaluated each entry based on its originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. After completing that review, the reviewing panel announced at the 2016 ACOEL annual meeting in New Orleans that this year’s winner of the Herrmann Environmental Writing Award is Ms. Irene Weintraub Shulman. Ms. Shulman’s article – published in the Cardozo Law Review [link] – is “NEPA and Uncertainty in Low-Risk, High-Impact Scenarios: Nuclear Energy as a Case Study.” In addition to winning the award, Ms. Shulman received a stipend of $3,500, and the submitting law journal (Cardozo) received $500. Ms. Shulman was also invited to attend a portion of the College’s meeting in New Orleans.
ACOEL remains gratified at the level of interest and academic excellence represented by all the submissions we received. And we again congratulate Ms. Weintraub Shulman and the Cardozo Law Review on their fine submission.
Posted on July 7, 2016
Jeff Thaler’s and Jim May’s blog posts about our recent ACOEL delegation visit to Haiti captured the vibrant spirit of Haiti’s legal community and its enthusiasm to build new programs in environmental law. Haiti offered a different insight as well: dire environmental conditions have spurred strikingly innovative and creative legal thinking. In one sense, Haiti’s challenges are a frontier that can test and forge new environmental laws and concepts.
After our delegation visit finished, my wife and I visited an abandoned United Nations outpost on a dirt road over an hour north from Port-Au-Prince. Hidden behind encroaching trees and weeds, a blue-trimmed UN guard tower watched over empty concrete foundations and open gates behind a decaying chain-link fence and tangled razor wire.
This fading post is a flashpoint in history. In 2013, sewage from the UN outpost’s battalion of Nepalese peacekeepers contaminated a nearby tributary and led to an outbreak of cholera that has killed over 9,000 people and sickened over 800,000 so far. The United Nations has rejected petitions that it should fund and establish a comprehensive sanitation, medical treatment and potable water program to halt the epidemic. In response, a group of Haitians and Haitian-Americans filed a class action lawsuit in the federal Southern District of New York court for damages and injunctive relief.
The United Nations stoutly rejected any argument that the U.S. court has jurisdiction over its operations. The United States vigorously urged the trial court to dismiss the lawsuit, and the court agreed on January 9, 2015 by denying jurisdiction. The district court found that the UN had not expressly waived its immunity under the Convention on Privileges and Immunities of the United Nations of 1946 (despite the UN’s failure to satisfy other important obligations under the Convention).
The case took a dramatic turn when the Second Circuit decided to hold oral argument on the Haitians’ appeal of the trial court’s dismissal. In a packed courthouse in Manhattan on March 1, 2016, the three-judge panel seemed sympathetic to the claims of Haitians who will likely have no possible relief or compensation if the court upholds the United States’ assertions of strong immunity on behalf of the UN. The court will probably issue its decision in the next few months.
If the court finds that the UN lacks absolute immunity for environmental or health damages caused by its actions, the decision could have a sweeping impact on the UN’s liability for other humanitarian actions that cause environmental harm. The UN plays a central role in multinational efforts to fight climate change, protect oceanic resources, and preserve endangered species and ecosystems, and the spectre of liability could hamper its activities. Depending on the scope of the court’s ruling, this case might also affect the liability of other multinational organizations whose actions to protect the environment unexpectedly injure human health or natural resources.
Haiti’s enormous environmental and public health challenges sparked this important case, and the legal creativity guiding the lawsuit arose there as well. Our delegation had the opportunity to meet Me. Mario Joseph, who directs the L'Association Haïtienne de Droit de l'Environnement which filed the lawsuit (along with several other groups). As lead counsel he guides the team of attorneys handling the case, and he strongly believes that legal creativity and ingenuity can overcome the procedural and jurisdictional barriers to reach a just environmental outcome.
If it desires, ACOEL can help monitor and, where appropriate, contribute to the development of these types of innovative environmental legal approaches in Haiti. The Second Circuit’s ultimate decision may offer an opportunity to discuss these issues with the Haitian environmental bar and with other lawyers who want to help build Haiti’s environmental laws and enforcement options.
In the meantime, change still comes slowly. When we visited the abandoned outpost, families had moved into the vacant buildings and children were bathing in a nearby stream – directly by the unused outfall pipe where the UN peacekeepers had previously discharged their sewage wastes. Whatever decisions come from U.S. courts, Haiti will have a pressing need for innovative and effective environmental laws for many years ahead.
Posted on June 14, 2016
A delegation of ACOEL Fellows visited Haiti, May 30-June 2, to share ideas about ways to advance environmental law and justice with leading members of the bar, academia, civil society, and the business community.
This visit takes place at a transformative time for the environment in Haiti. Deforestation hovers at around 95% as people are forced to burn charcoal for fuel or income, rivers and streams are choked by trash and runoff, motor vehicles are largely unregulated, and the public health system is overwhelmed. And of course, Haiti still suffers from the introduction of cholera in October 2010, resulting in more than 9,000 deaths thus far.
The visit was at the invitation of host institution Universite de la Fondation Aristide (UNIFA)(http://unifa-edu.info/contenu/). The delegation -- Alexander Dunn, Lee DeHihns, Tracy Hester, Dennis Krumholz, Jeff Thaler, and Jimmy May – had a transformative experience. Professor Erin Daly (Vice President for Institutional Development) served as the local liaison, with ACOEL Fellow and Professor James R. May serving as coordinator on behalf of the College's Committee on International and Pro Bono Programs, which he co-chairs with Professor Robert Percival.
The delegation met with many of Haiti’s leading policymakers, thinkers and advocates, former President Jean Bertrand and Mme. Mildred Aristide, Me. Fabrice Fievre (Co-Dean of UNIFA Law School), Me. Mario Joseph (director of the nation’s leading human right law firm, Bureau des Avocats Internationaux, http://www.ijdh.org), Me. Jean Andre Victor (director of Haiti’s leading environmental rights firm, L'Association Haïtienne de Droit de l'Environnement), Me. Stanley Gaston, (President of the Port-au-Prince Bar Association), Me. Leslie Voltaire (Haitian architect and urban planner), and Me. Cedric Chauvet (a leading business-person). The delegation also enjoyed various cultural opportunities, including in Port Au Prince, Petionville, and Cite Soleil.
The delegation also visited SAKALA (a leading community center serving among Haiti’s poorest children, http://www.sakala-haiti.org), and the 'uncommon' artists’ community of Noailles, Haiti (http://www.uncommoncaribbean.com/2015/03/10/visiting-the-uncommon-artists-enclave-of-noailles-haiti/).
UNIFA is a leading private university in Haiti, and focuses on promoting dignity and social justice, including by advancing environmental sustainability. Earlier this year it hosted conferences dedicated to environmental human rights issues and their relationship to health, engineering, and law in Haiti (“Environmental Concerns: Today and Tomorrow”) (brochure available at: http://unifa-edu.info/contenu/wp-content/uploads/2016/05/programmation-semaine-scientifique-2016.pdf), as well as to the environmental and social consequences of mining in Haiti (https://www.facebook.com/Aristide-Foundation-for-Democracy-306681307454/?fref=nf)."
ACOEL looks forward to continuing conversations about ways to coordinate and collaborate going forward.
Posted on May 2, 2014
Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments. He fashioned legal arguments and remedies where others saw none. His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.
David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains. He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England. He had a mature concept of the ethics of nature long before he began to practice environmental law.
His early cases were defensive. He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River. Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law. The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act. The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced. When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).
When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century. The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army. The Army’s West Point Military Academy overlooks the River and Storm King.
David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard. David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida. He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him.
David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970). Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge. Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants. He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved the beaches, parks and marinas of the Hudson shore.
Public interest litigation to safeguard the environment was born in these cases. Public outrage about pollution and degradation of nature was widespread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive was prominent among participants. His essential argument was that “environmental law” needed to exist.
On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY). This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment.
David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression. In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law. From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes.
David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice. He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts. To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI). With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.
This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report. The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed. New legal theories and remedial initiatives will be needed that do not exist today. The wisdom of ecologist Aldo Leopold can inform the next generation. Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India. The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.
Posted on July 11, 2013
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.
Posted on November 9, 2012
We’ve all seen the advertisements. Products that are supposedly “recycled,” “environmentally friendly,” and “green,” with labels and commercials resplendent in shades of light green and yellow, seeking to evoke nature, sunlight, and a family-friendly, non-toxic product. But how “green” must a product be in order to rightfully proclaim itself to be so? The revised “Green Guides,” issued by the Federal Trade Commission (“FTC”) on October 1, 2012, propose to answer that very question.
Originally issued in 1992, and revised in 1996 and 1998, the FTC’s “Green Guides” offer guidance to marketers on how to properly use words of environmental attribution in describing products. The Guides are examples of environmental claims that the FTC might find deceptive under the FTC Act, § 5; they are neither rules nor regulations. The current version of the Guides was released in proposed form in 2010 and received several hundred unique comments. Beyond analyzing the comments, the FTC accumulated additional information based on three public workshops and a study designed to understand how consumers perceived environmental claims. The final version of the Guides, in addition to updating its original content, provided additional information on newer types of environmental claims.
The new sections in the Guides cover carbon offsets, certifications and seals of approval, “free-of” claims, non-toxic claims, and two claims relating to the manner and materials used in production: renewable energy claims and renewable materials claims. As an illustration of the new sections, the FTC addresses deceptive practices used to claim an emissions reduction through carbon offsets. Marketers should “clearly and prominently disclose if the carbon offset” does not provide an emissions reduction for over two years. Similarly, claiming that a carbon offset corresponds to an emissions reduction that is otherwise required by law is a deceptive practice.
Other sections are modified. For example, the Guides clarify that an unqualified degradable claim must be able to show that the entire product or package will break down completely within one year after disposal. Objects that are expected to go to a landfill, incinerator, or be recycled do not degrade within a year, and thus should not be linked to such a claim. In each of its 13 total sections, the FTC provides concrete examples of practices it terms deceptive.
The Guides recommend that some environmental claims not be used at all, such as “environmentally friendly” or “eco-friendly.” The consumer study performed by the FTC found that these terms indicate wide-ranging environmental benefits that few, if any, products may obtain. The Guides do not address “sustainable,” “natural,” and “organic” to avoid conflicting or duplicative advice from other agencies that have the purview of these terms.
In order to provide assistance to the general public in understanding the Guides, the FTC produced several educational and business resources, from summaries to a highlight video to relevant legal documents. These resources, in conjunction with the Green Guides themselves, provide protection to consumers, allowing us more transparency into just how “green” our products really are.
Posted on April 23, 2012
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.