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environmental perspectives N e w s
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Robert Glicksman, J.B. and Maurice C. Shapiro Professor of Environmental Law
This article is excerpted from Robert L. Glicksman’s article, “Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to Federal Land Management,” 87 Nebraska Law Review 402 (2009). The author discusses environmental issues related to climate change affecting federal lands and suggests several approaches to managing the federal lands to reduce greenhouse gas emissions and adapt to environmental changes caused by climate change.
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An Expanded Focus on Energy
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Yosemite National Park
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he federal government has faced significant challenges in its efforts to protect from environmental harms the value of the lands and resources it owns and manages on behalf of the American people. Most of the threatened
harms have resulted from activities occurring on the federal lands themselves (and either conducted or approved by federal land managers) or on state or private lands adjacent to federal holdings. Clearcutting has decimated areas of the national
forests. Overgrazing of the public rangelands has contributed to soil erosion and displacement of native vegetation by invasive species. Mineral development has scarred landscapes and left thousands of abandoned mines on federal lands in its wake. continued on page 2
he new academic year at GW Law opens with a significant new emphasis on energy law. This emphasis is most evident in the launch of our Journal of Energy and Environmental Law and in our new Energy and Environmental Law LL.M. concentration. These endeavors build on a strong base. GW Law has included energy law in its curriculum for more than 20 years. Our students have regularly interned with the Department of Energy, the Federal Energy Regulatory Commission, and the Nuclear Regulatory Commission. Our International Project Finance continued on page 11
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Off-road vehicle use has damaged landscapes and interfered with other forms of recreational use of the federal lands. These kinds of damage to federal lands and resources share at least two characteristics. First, they result primarily, if not entirely, from activities taking place on or near federal lands. Second, there is usually little difficulty in identifying the activities responsible for the harms or threatened harms of concern, although the government’s authority to stop or limit those activities is often vigorously contested. Both characteristics make it relatively easy for the government to design strategies to reduce harm to federal lands and resources from the identified activities, assuming it has legal authority, adequate funds to exercise that authority, and the political will to act. Federal land managers, however, now face a threat of relatively recent vintage—the threat to lands and resources posed by global climate change—which shares neither of these characteristics. Consequently, federal land management agencies face a sobering set of challenges as they seek to prevent resource impairment resulting from climate change. Climate change is a global phenomenon. As a result, most activities that contribute to climate change are beyond the control of the federal land management agencies (and those taking place in other countries are for the most part beyond the regulatory jurisdiction of the entire federal government). Even if the land management agencies were to completely eliminate all GHG emissions from activities on the federal lands, climate change would continue to harm those lands. It is, therefore, far from obvious what federal land managers can do (other than to preserve forested areas and other
areas that serve effectively as carbon sinks) to protect the resources entrusted to their care from the unavoidable adverse effects of climate change. What is clear is that climate change presents daunting challenges to the federal government’s ability to manage its lands and resources in ways that ensure that they remain substantially unimpaired. One of the challenges results from the fact that the laws governing the activities of federal land management agencies, including the National Forest Service (“NFS”), the Bureau of Land Management (“BLM”), the National Park Service (“NPS”), and the Fish and Wildlife Service (“FWS”), have outlasted the scientific assumptions on which policymakers relied in enacting and implementing those laws. In particular, Congress adopted many of those laws at a time when scientists and natural resource management policymakers assumed that ecological systems tend toward a natural equilibrium. Subsequently, the science of ecology experienced a “paradigm shift.” The discipline no longer views natural systems as being in equilibrium or moving toward it. Rather, “[t]he contemporary paradigm recognizes that ecosystems are open and not necessarily in equilibrium. It recognizes disturbances to be a natural and necessary part of ecosystems.” Furthermore, it recognizes that disturbance is inevitable, and that natural resource management efforts that fail to consider the consequences of these disturbances, particularly potentially catastrophic ones, are not likely to succeed at preserving the affected resources in the long term. When this paradigm shift occurred, it should have become clear that natural resource management strategies based on the equilibrium paradigm were likely to be ill-suited to achieving
their goals; something different was needed. Under a dynamic approach, for example, resource managers would no longer be subject to the dictates of a land use plan set in stone upon adoption and subject to a cumbersome amendment process. Instead, they would manage by adaptation, changing management strategies on an ongoing basis in response to information on the effects of past strategies and on unexpected changes in natural systems resulting from largely unforeseen disturbances. The significant ecological changes likely to result from climate change, some of which have already begun, make it crucial that the land management agencies take steps to protect the resilience of affected ecosystems. Resilience refers to the ability of a system to continue to function effectively in spite of some major perturbation. The land management agencies, in the planning process as well as in other contexts, must rely heavily
on the management technique known as adaptive management. The Interior Department’s most recent National Environmental Policy Act (NEPA) regulations define adaptive management as “a system of management practices based on clearly identified outcomes and monitoring to determine whether management actions are meeting desired outcomes; and, if not, facilitating management changes that will best ensure that outcomes are met or re-evaluated. Adaptive management recognizes that knowledge about natural resource systems is sometimes uncertain.” Biologists have distinguished among different types of adaptive management. The one endorsed here is active adaptive management, which involves “learning about environmental impacts by creating specific scientific experiments designed to test hypotheses.” Adaptive management is a planning and management device tailor-made for dealing with uncertainty. The vast majority of
The Merced River, Yosemite National Park
plan until the responsible official either establishes an environmental management system for the Forest System unit concerned or conforms the project or activity to a multi-unit, regional, or national level system. According to the U.S. Climate Change Science Program, “[c] limate change creates new situations of added complexity for which an adaptive management approach may be the only way to take management action today while allowing for increased understanding and refinement tomorrow.” Yet, the land management agencies must be careful how they implement an adaptive management approach. The courts are not always impressed with the process and may regard it as a mechanism for achieving an end-run around statutory planning requirements. In one case, for example, the Ninth Circuit held that the Bureau of Land Management violated the requirement that management decisions conform to preexisting plans by changing resource management plan provisions without a formal amendment. The court rejected the agency’s claim that its actions constituted mere efforts to “maintain” the plan, and that formal amendment was therefore unnecessary under BLM regulations. The court refused to allow the BLM to conduct timber sales in a manner inconsistent with the plan by characterizing the actions it took as adaptive management modifications that were contemplated by the plan and made necessary by newly available information. In another case, a federal district court found that the Forest Service violated the National Forest Management Act, and a land and resource management plan adopted under it that required monitoring of the effects of grazing on forest resources, when it stated in an environmencontinued on page 10
[ what’s new ] GW Welcomes Professor Rob Glicksman The Law School is pleased to welcome Rob Glicksman to its faculty. Professor Glicksman succeeds Arnold Reitze as the J.B. and Maurice C. Shapiro Professor of Environmental Law. He will teach a new class in Regulation of Toxic Substances Risk during the fall semester and Property Law and Air Pollution during the spring semester. Rob Glicksman
Professor Glicksman is a nationally and internationally recognized expert on environmental, natural resources, and administrative law issues. A graduate of the Cornell Law School, he teaches courses, does research, and makes presentations in the areas of environmental, natural resources, administrative, and property law. Before joining the GW Law faculty, Professor Glicksman taught at the University of Kansas School of Law, where he joined the faculty in 1982 and was named the inaugural holder of the Robert W. Wagstaff Distinguished Professor of Law in 1995. Before joining academia, Professor Glicksman practiced with a firm in D.C., focusing on environmental, energy, and administrative law issues. He has consulted on various environmental and natural resources law issues, including work for the Secretariat of the Commission for Environmental Cooperation in Montreal, Canada. Professor Glicksman has extensive publications in the areas in which he teaches. He is a co-author of the environmental law casebook, Environmental Protection: Law and Policy (Aspen Publishers); the four-volume treatise, Public Natural Resources Law (Thomson/West); the monograph, Risk Regulation at Risk: A Pragmatic Approach (Stanford University Press); and Modern Public Land Law in a Nutshell (West Group). Professor Glicksman is also one of two co-authors of the forthcoming law school casebook, Administrative Law: Agency Action in Legal Context (Foundation Press). He has written numerous book chapters and articles on environmental and natural resources law topics. His articles have been published in law reviews and journals that include the Pennsylvania Law Review, the Northwestern University Law Review, the Duke Law Journal, the Vanderbilt Law Review, the Wake Forest Law Review, the Indiana Law Journal, the Stanford Environmental Law Journal, the Virginia Environmental Law Journal, and the Administrative Law Review. Professor Glicksman has been a member scholar for the Center for Progressive Reform since 2002 and a member of the center’s board of directors since 2008. continued on page 5
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scientists no longer disagree that climate change has begun or that human activities that generate GHG emissions are largely responsible for causing it. Yet major uncertainties remain over the timing, extent, and distribution of climate change and its associated impacts. The planning process must provide resource managers with sufficient flexibility to deal with unanticipated effects of climate change. Adaptive management can provide that flexibility. According to some observers, some federal land management systems have long relied on static policies that fail to reflect the “dynamic management actions,” such as adaptive management, needed to tackle climate change. But all of the federal land management agencies already appear to rely on adaptive management to some extent. As indicated above, the Interior Department’s NEPA regulations incorporate adaptive management into the NEPA evaluation process. In addition, the FWS has listed “providing a basis for adaptive management by monitoring progress, evaluating plan implementation, and updating refuge plans accordingly” as one of the eight goals of planning for the National Wildlife Refuge System. The agency has recognized, however, that it needs to provide additional guidance dealing with the principles of adaptive management and monitoring. Similarly, the Forest Service has characterized land management planning as “an adaptive management process that includes social, economic, and ecological evaluation; plan development, plan amendment, and plan revision; and monitoring.” To carry out that process, the agency in the latest iteration of its planning regulations has included a prohibition on the implementation of a project or activity (such as a timber sale) approved under a
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[ profiles ] Ger maine Leahy
Environmental Librarian As a young graduate student, Germaine Leahy and a close friend packed up their bicycles, shipped them overseas, and embarked on an outdoor bicycle tour through the French countryside. Today, Leahy still loves to bike and her appreciation for the environment is not merely a hobby, but her area of expertise. As the Law School’s head of reference/environmental librarian, Leahy manages a staff of five professional librarians, assists students with research, and oversees the acquisition of new environmental law materials for the library. Leahy, who attended Georgetown University and the University of Virginia for her undergraduate studies, earned an
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Environmental Perspectives is published twice a year by the Environmental Law Program at The George Washington University Law School. Editor
Lee Paddock, Associate Dean for Environmental Law Studies Assista nt Editors
Mariam Ghafari Alexa Zenzano Questions or comments should be sent to: Lee Paddock lpaddock@law.gwu.edu (202) 994-8320 George Washington University Law School Environmental Law Program 2000 H Street, NW Washington, DC 20052 igpo@law.gwu.edu www.law.gwu.edu/environmental
English degree but was uncertain what she wanted to do next. When a family friend mentioned an internship opening at the Solicitor’s Office library at the Department of Interior, Leahy interviewed and landed the job. Shortly thereafter, she enrolled at Catholic University (CUA) and began work on her master’s degree in library science. “In my coursework, I found reference work—using sources and tracking down information for people—so interesting,” says Leahy. “I discovered that I enjoyed working with people, constantly learning about new topics and being involved with what is going on in the world in whatever small way.” At CUA, Leahy enrolled in law-related courses, taught by the then law librarian of Congress, and discovered her niche. “I found legal research the most challenging type of library work and signed up for all her courses,” says Leahy. After completing her master’s degree, Leahy worked for a D.C. law firm specializing in natural resources law and Indian law and for the American Bankers Association library, where she solidified her interest in reference work. Leahy’s career at the Law School began in 1986 as a part-time government documents librarian. She helped maintain the depository library, which held copies of reports issued by committees on legislation. “We kept a lot of EPA and Department of Transportation reports because Professor Arnold Reitze, former director of the environmental law program, was very interested in motor vehicle emissions and air pollution law,” recalls Leahy.
A couple of years later, Leahy assumed a full-time role at the library. Then in 1993, the law library set up a faculty liaison program, with reference librarians who specialize in LL.M. subject areas, to better support the LL.M. programs. Leahy’s transition into the role of environmental librarian happened naturally, thanks in part to her natural resources background and government contract work. “As government documents librarian, I developed a close relationship with Professor Reitze because he would ask for a lot of legislative history information with amendments to the Clean Air Act and other types of environmental legislation,” she explains. Researching legislative history is a welcomed opportunity for Leahy, who says, “I’ve always enjoyed legislative history and regulatory work and looking for the intent behind the agency’s actions—why the agency included this language, what was their intent in setting up the standards this particular way and finding those reasons.” Leahy published several articles in The Environmental Lawyer covering the use of Internet sources for
Germaine Leahy
environmental research. In addition, she has taught continuing legal education courses for the Government Contracts Program and the Environmental Law Program and led a research seminar for the U.S. Fish & Wildlife Service in Shepherdstown, WV. At the start of each semester, Leahy teaches a research class for Dean Paddock’s Environmental Lawyering course. Giving students an in-class project, she walks them through the different issues and appropriate sources. She uses the occasion to raise awareness about e-waste, electronic waste that is intended to be recycled but is often rerouted to poor countries and incinerated. “It’s such a dynamic job,” says Leahy. Leahy credits the support of her family for her successful career. She and her husband, who reside in Arlington, VA, have four young-adult children. As environmental law librarian, Leahy enjoys most helping others around her achieve success. “It’s rewarding just celebrating with the students, faculty, and staff and hoping their projects get published and out there to help other people,” says Leahy.
Journal of Energy and Environmental Law
Tom Mounteer
Professor
For Tom Mounteer, partner at Paul Hastings and GW Law adjunct professor, balancing a full career is simply about “following your bliss,” he says. “I stumbled into environmental law, but once I was here I just ate it up.” At his firm, Mounteer handles multiple environmental law issues, including advising businesses on state and federal air and water pollution laws and solid and hazardous waste management. But it wasn’t until after law school, while working on a Superfund project for a major pharmaceutical company, that he decided to pursue environmental law. “It’s public policy. It’s this nice mixture of complicated facts, complicated legal regimes, a multidisciplinary practice with regulatory experts and technical experts, so it really suited me,” he says. Mounteer particularly enjoys the intersection of environmental law and securities law. “It has a lot of scientific uncertainty,” he says. “I’m very interested in securities disclosure and the question of, ‘What should companies, who are publicly traded, be disclosing in their securities filings with respect to climate change impacts?’” Teaching is something Mounteer always wanted to do, and it also provides exciting challenges. “Teaching is a learned
skill. It’s taught me to appreciate how hard it is to be a good teacher,” he says. Mounteer teaches Control of Solid and Hazardous Waste and Environmental Aspects of Business Transactions. In 2009, he received the Distinguished Adjunct Teaching Award. Both in his role as partner and as teacher, Mounteer enjoys the opportunity to work with young people. “I love that interaction and their energy,” he says. Mounteer, along with 21 of his Paul Hastings’ colleagues, recently authored the Climate Change Deskbook. The book provides a comprehensive guide to the law of climate change, and all profits from the book will go to the Environmental Law Institute (ELI). “I’m a big fan of ELI,” he says, “and I admire them because of their dedication to the mission.” In addition, Mounteer frequently writes professional and scholarly articles. Most recently, he co-authored two articles pertaining to NEPA compliance, published by BNA, entitled “Treasury Can Award Renewable Energy Grants Without Review” and “Environmental Review of Energy Projects Seeking Recovery Act Loan Guarantees.” In his spare time, Mounteer enjoys biking on the weekends and practicing Dahn yoga. continued on page 8
The newly launched GW Law Journal of Energy and Environmental Law has selected Trevor Salter as its new editor-in-chief. Other members of the initial editorial board include Colleen Fleming, senior managing editor; Dave Townsend, senior articles editor; Kyle Herrig, senior projects editor; Hye Won (Helen) Jun, senior notes editor; Alan Toplian, managing editor; Carmen Byrd, electronic articles editor; Wanying (Patience) Bin, international articles editor; Rich Harper, articles editor; Caitlin Shimer, articles editor; Parker Sinclair, notes editor; Ufot Umana, notes editor; and David Mitchell, training and communications editor. For more information about the journal or to submit an article for possible publication, contact gwjeel@gmail.com.
Energy and Environmental Law LL.M. Concentration
Beginning in fall 2009, GW will offer a new concentration in Energy and Environmental Law as part of its Environmental LL.M. program. The concentration will allow master’s degree students to develop an in-depth understanding of energy law and the environmental issues that have a direct impact on energy production and use. That increased understanding will prepare them to practice in this rapidly growing field. Required courses include Energy Law and Regulation, Energy and Environmental Law, Project Financing, International Climate Change Law, and Air Pollution. Students also are expected to complete a thesis on an energy-law topic. For more information on the Energy and Environmental Law LL.M. concentration, contact Dean Paddock at lpaddock@law.gwu.edu. continued on page 11
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NEPA at 40
Panelists (l to r) Robert Dreher, vice president for conservation law, Defenders of Wildlife; Horst Greczmiel, associate director for NEPA oversight, CEQ; (at podium) Stephen Kass, partner, Carter Ledyard & Milburn LLP; and Nicholas Yost, partner, Sonnenschein Nath & Rosenthal LLP, discussed NEPA exemptions and waivers.
In commemoration of the National Environmental Policy Act’s (NEPA) 40th anniversary, the Law School hosted a conference examining the future of the NEPA in March 2009, drawing on the expertise of many of the country’s top NEPA scholars and practitioners. The President’s Council on Environmental Quality and the Environmental Law Institute co-sponsored the 2009 J.B. and Maurice C. Shapiro Environmental Law Conference at which attendees suggested ways to improve implementation of NEPA, a statute that Professor Jamie Grodsky characterized as the Magna Carta of environmental law. Speakers stressed the need for improved public involvement, a better scoping process, and enhanced accountability for post-environmental review implementation decisions. Keynote speaker Nancy Sutley, chairwoman of the White House Council on Environmental Quality (CEQ), praised NEPA as “marking a dramatic turning point for thinking about how actions affect the environment.”
As for NEPA’s future, Sutley observed, “We can, in this very broad and durable statute, find the flexibility to get through the reviews in a way that maintains NEPA’s principles and goals without undoing the whole thing.” Sutley indicated that a top priority for her is focusing on informing decision makers, policy makers, and the public of the alternatives to and the environmental costs of making choices, but she expressed dismay that NEPA is not seen as a
priority by government agencies. “The unfortunate trend is that NEPA reviews are pushed down so far in federal agencies, it takes forever for them to rise up to the attention of the decision makers and the policy makers, and at that point, then it’s a hurry,” she said. Sutley acknowledged that climate change would be a primary concern for the CEQ, noting, “How we guide agencies in considering climate change under NEPA and how that fits into overall policy and legislative discussion on climate change is something we will be spending some time on this year.” Discussing the authority and effect of NEPA, Professor Michael Gerrard, Columbia University School of Law, stressed the need for more effective environmental impact statements (EIS). He pointed out that there is very little post-EIS auditing and no reality check to see if the methods used in EIS’s have any validity. Noting that most EIS’s are time consuming to produce but then forgotten after a decision has been made, Gerrard suggested that there should be an EIS “rescue project” in which existing EIS’s are collected, put online, and organized into a searchable database. “If this is done, NEPA could be a wealth of information about what humanity has done to
Horst Greczmiel, of the CEQ, and Mary O’Brien, environmental scientist and activist, were panelists at the conference.
the world and what could be done to reverse its impact,” he said. David Mattern, senior consultant at Paramatrix, talked about public involvement in decision making. He pointed out that although EIS documents are the primary means of communicating with the public, it is widely understood that the documents are not written for the general public, making it difficult for them to identify relevant issues. “This fosters an adversarial type of relationship,” he said. Potential solutions for public involvement, including interactive methods such as offering site visits and allowing the public to be more involved in generating alternatives for the government decision-making agencies, were suggested by Jim McElfish, senior attorney and director of the Sustainable Use of Land Program, Environmental Law Institute. “We also need ways of communicating to citizens that what they have to contribute makes a difference,” said McElfish. The length of time it takes to complete the EIS process was also identified as an important issue. Panelists discussed ways to expedite NEPA. Nicholas Yost, partner at Sonnenschein Nath & Rosenthal LLP, set out four guidelines for what should be preserved about NEPA: the search for alternatives, the public involvement, the judicial review or other outside impartial review, and the prohibition of NEPA waivers. He advocated that CEQ take a stronger role in overseeing NEPA implementation to ensure that reviews are completed in a timely fashion and that the public is engaged in the process as early as possible. Horst Greczmiel, associate director for NEPA Oversight, Council on Environmental Quality, suggested that people approach NEPA from a different perspective. “If any of you think
Leslie Carothers, president of the Environmental Law Institute, discussed current and future use of NEPA.
emphasized “the need to build flexibility into the preparation of NEPA documents so they don’t become stale quickly. “The most important lesson with respect to NEPA and long-term planning is the need to tailor NEPA strategy to the needs of your decision maker,” she said. “The scope and the timing of your NEPA document have to mesh with the needs of your decision maker.” She urged the audience to “think expansively, [to] be inclusive not exclusive. Because we want to increase the shelf-life, it makes sense to include alternatives that may be on the fringe.” Panelists also discussed ways of ensuring NEPA compliance. Dreher called for the enforcement of mitigation. “The integrity of NEPA depends on accuracy of environmental predictions and the extent to which mitigation is carried out. Mitigation commitments are almost never monitored,” he said. “That raises serious issues in terms of truth in advertising.” He proposed that agencies adopt their own regulations, CEQ amend their regulations and issue binding guidance, and that the president issue executive orders, all to encourage federal agencies to adopt mitigationenforcement procedures. “Agencies should ensure that they have adequate resources to implement mitigation at the time of decision, or else they shouldn’t be permitted to rely on [mitigation measures as part of a mitigated finding of no significant impact],” Dreher said. George Mannina, senior partner at Nossaman LLP, suggested that scoping needs to be a continuous process as the project evolves, and he encouraged the use of programmatic statements. “The implication of global warming is a not-yet-fullyappreciated driver in how many of our environmental analyses are done,” he said. “The concept of a
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that the reason you do NEPA is because it’s the law, try recasting your NEPA work as follows: I work on NEPA because I want to help my agency make better decisions in a timely fashion,” he said. “And then, perhaps instead of thinking about what waivers to ask for, you’ll ask yourselves, ‘What can we do to improve the processes we used to implement it?’” Robert Dreher, vice president for conservation law, Defenders of Wildlife, emphasized the importance of keeping NEPA nimble, responsive, and flexible: “The key there is sound management, sound implementation, and sound resources.” He noted a shortage of people in the federal agencies to fully realize these goals. As the conversation turned to NEPA and long-term planning, Professor Oliver Houck of Tulane University Law School expressed concern at how planning has fallen by the wayside. “When Nixon passed this statute, he talked about poor planning and piecemeal decision making, condemning it,” he warned. To facilitate planning, Carol Borgstrom, director of the Office of NEPA Policy and Compliance, U.S. Department of Energy,
Jamie Grodsky, GW Law professor, and William Rodgers, professor at University of Washington Law School, participated in the conference.
The conference, co-sponsored by the CEQ and the Environmental Law Institute, was well attended.
programmatic statement will help us to deal with those issues.” David Paget, partner at Sive, Paget & Riesel, P.C., expressed frustration at the lack of scoping and at getting agencies to participate in the NEPA process early on instead of “confronting issues either post-EIS or on the brink of securing a permit.” Kenneth Weiner, partner at K & L Gates LLP, echoed Paget’s call for improved scoping and also suggested a community-oriented process that results in a preferred alternative before formal NEPA documents are required. The conference concluded on an optimistic note with the participants expressing the
view that, with some thoughtful change—changes that would open up the process more to the public, create greater accountability for implementing mitigation measures, reemphasize the value of good information for both proposed projects and for agency planning, and make the information in environmental review documents more accessible to decision makers and to the public—NEPA at 40 is wellequipped to address 21st century issues, but it needs some refreshing. As Chairwoman Sutley said, “A scalpel is probably better than a bulldozer to deal with NEPA.” ★
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Something’s in the water at Claremount McKenna College In a rather unlikely coincidence, the Law School’s class of 2011 includes three students enrolled in the environmental law program who call Claremount McKenna College (CMC) their alma mater: Andrew Byrne, Sara Vink, and Ben Carrier. What’s so unusual about this? Claremont McKenna is a small school, with only about 1,200 students. Located in Claremount, California, the liberal arts college is part of a seven-college community known as The Claremont Colleges, a system modeled after England’s Oxford University. CMC is also home to the Roberts Environmental Center, which is focused on researching global corporate environmental transparency and performance.
Resources Division this fall in the Environmental Enforcement section. “I’m hoping to work on Clean Air Act issues,” he says. At GW Law, Carrier is active in the Environmental Law Association. In his free time, he enjoys camping, biking, rafting, and playing frisbee.
Andrew Byrne Ben Carrier
Sar a Vink
Ben Carrier
Sara Vink grew up hiking and horseback riding in the Colorado Rockies and graduated from Claremount McKenna College with a dual major in government (with an honors thesis) and literature. Vink gained early exposure to environmental issues through volunteering at the Nature Conservancy’s Colorado field office during high school and now is earning her JD and a master’s of public policy in environmental policy. Presently, she is working as a law clerk at the Justice Department in the Environment and Natural Resources Division’s Appellate Section. “Since starting here six weeks ago, I have already drafted a no appeal memorandum for the Solicitor General’s Office, a motion to dismiss as moot, a motion to stay briefing, and an attorney’s fees brief, among other projects,” she says. Prior to law school, Vink spent a semester in Washington, D.C., working on Capitol Hill for Representative Mark Udall (now Senator Udall). Then, she earned a spot in the honors paralegal program in the Justice Department’s Environmental Division and worked for the appellate section for two
Ben Carrier hails from Ashland, Oregon, and graduated from Claremount McKenna College with a degree in international relations. Before coming to GW Law, Carrier and his friends organized an independent trip to Central America, where they worked with local organizations to build bio-diesel processors. The processors, which are made using plant oil and locally sourced plants, help reduce emissions and support the use of renewable, local resources. “A friend recently returned and reported that they’re still using the processors three years later,” he says. This experience, he says, along with his time spent working for the National Center for Conservation Science & Policy, led to his interest in environmental law. “I realized the importance of law in environmental protection,” Carrier explains. This summer, Carrier worked at the Environmental Law Institute, conducting research pertaining to climate change and biodiversity in developing countries. “I loved the people I worked with. Everyone is really dedicated,” he comments. Carrier will be working parttime at the Department of Justice Environment Natural
Sara Vink
years. “I learned a lot about environmental law and appellate practice and worked with some very smart environmental lawyers,” she says. At GW Law, Vink is secretary of the Environmental Law Association, a member of the Moot Court Board, and the Section 13 Bar/Bri representative. As research assistant to Visiting Professor Amy Stein, she worked on two forthcoming environmental law articles: “Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases” and “Fish Stocking Programs at Risk: Takings Under the Endangered Species Act.” In her spare time, Vink enjoys hiking, biking, and running in the D.C. area.
Andrew Byrne, who hails from the Bay area, graduated from Claremount McKenna College with a dual major in international relations and Spanish. Through reading books on the environment and hearing about environmental damage occurring around the world, Byrne developed a strong interest in environmental law. “I felt that it would be very ignorant not to recognize the potential damage that could occur from mistreatment of the environment in both small/local and large ecosystems,” he says. Byrne is currently interning at the District Department of the Environment Office of the General Counsel, focusing on water-related issues. He chose GW Law because he hopes to pursue environmental work for the government. “George Washington made the most sense,” he explains.
Andrew Byrne
Emily Hildreth
(Class of 2011) Raised by two law professors in environmentally conscious Eugene, Oregon, Emily Hildreth was brought up thinking about environmental issues. But it wasn’t until Hildreth, a UC-San Diego graduate, interned at a law firm during college and discovered she liked the methodology of the law that she decided to pursue law school. Presently, Hildreth interns at the Baltimore City law department, where she is working on a weatherization project for low-income housing that is being started with stimulus funds. She finds this type of work particularly rewarding, explaining, “The focus is on environmental justice, reaching out to minorities and underrepresented groups that
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Environmental LL.M. Program
Emily Hildreth
often don’t get good environmental services.” Hildreth chose GW Law because of the breadth of the environmental law courses and the abundance of opportunities in Washington, D.C. “Dean Paddock reached out to me when he knew I was interested and that reinforced my decision,” she explains. After law school, Hildreth hopes to pursue a career in environmental law working for the government. This fall, Hildreth will begin an internship with the National Oceanic and Atmospheric Administration in the general counsel’s Office for International Law. “Ocean law and ocean issues are important to me,” she says. “Living in San Diego, I spent a lot of time at the beach and in the water surfing.” At GW Law, Hildreth is active in the Environmental Law Association, having served as a 1L liaison and conferences committee member. She is presently the conference coordinator for the association. “The environmental law program is on the rise, and Dean Paddock’s very committed to bringing it up,” she says. “I feel like I got here at the right time.” In her free time, Hildreth enjoys running and taking road trips in her Prius.
Scott Nuzum developed an early interest in environmental issues, thanks to his childhood experiences exploring both the Florida Everglades and his father’s home state of West Virginia. “I’ve always been really attracted to conservation, preservation, and resource management,” he says. Nuzum, who is pursuing his LL.M. in international environmental law, worked as a legal fellow at the International Union for the Conservation of Nature (IUCN). There, he worked on helping developing countries finance adaptation strategies to deal with climate change, which is his primary area of interest. One of the most exciting aspects of his job at IUCN was his involvement in the climate debate. “We were getting daily updates from the Bonn climate meeting where representatives from countries/NGOs/IOs sat down and came up with a laundry list of options for a post-2012 climate agreement,” he explains. “Member states will now take those options and debate the best outcomes for a Kyoto-successor treaty in Copenhagen this December.” In August, Nuzum began a year-long fellowship at the White House Council on Environmental Quality, Land and Water Division, working on large-scale ecosystem restoration issues. After his fellowship, Nuzum says, “I hope to continue working on adaptive strategies and legislation and law and policy that allows communities to thrive and grow in the face of climate change.” An avid researcher, Nuzum serves as research assistant for the Institute for Analysis of Solar Energy, where he works with Dean Lee Paddock researching domestic state solar energy initiatives and assists Professor David Freestone in his research on solar projects
pertaining to the Kyoto Protocol. Nuzum is also editing Professor Freestone’s upcoming book on carbon financing. At the University of Miami School of Law, he served as editor-in-chief of the University of Miami Inter-American Law Review. Though Nuzum has always been passionate about environmental issues, pursuing an LL.M. wasn’t part of his original plan. “My brother, a scientist, introduced me to his mentor, Hal Wanless, who is the chair of the geology department at the University of Miami and a really great climate scientist,” he explains. “Hal really encouraged me to pursue these broad law and policy issues [of] adaptation, restoration, etc., and that’s the reason I decided to pursue an LL.M. at GW Law.” For his time at GW Law and the opportunities Washington, D.C., has brought him, Nuzum is grateful. “I’ve met some great people, like Professor Freestone, Dean Paddock, and Adjunct Professors Di Leva and Petsonk, who’ve really provided me with a lot of guidance and encouragement.” But, he notes, “None of this would have happened without my brother and Hal.” In his spare time, Nuzum enjoys training and participating in triathlons. He most recently participated in the Saint Anthony’s triathlon in April. ★
Scott Nuzum
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Before law school, Byrne served for two years as an agroforestry Peace Corps volunteer in El Salvador. Then, he spent a year living in Pasadena, California, managing a stream restoration program designed to bring a native fish back to an impaired stream. “Through my work at environmental non-profits, I came to believe that law school would be the best way to have a more influential career in environmental work,” he says. Byrne serves as the sustainability coordinator of the GW Environmental Law Association and is an active member of the GW softball teams and squash club. In his spare time, Byrne enjoys playing tennis and softball. He is also the captain of the Claremont McKenna alumni chess team.
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tal impact statement that it would develop and implement a monitoring plan through an “iterative process” that was part of an adaptive management strategy. The court found that these references provided an inadequate explanation of how the agency would comply with the plan’s requirements. The courts have reached similar results in cases in which the Fish and Wildlife Service relied on its commitment to engage in adaptive management to justify its failure to discuss mitigation measures in a biological opinion issued under the ESA. Although the court acknowledged that adaptive management can be beneficial and that flexibility is an essential incident of adaptive management, it concluded that
the agency failed to strike an appropriate balance between the dual needs of flexibility and certainty in that it did not provide reasonable assurance that the admitted adverse effects of the project would actually be mitigated. These cases caution that the land management agencies should not use reliance on adaptive management as an excuse for deferring real planning in favor of a “don’t-worry-about-itnow-because-we’ll-figure-outwhat-we-need-to-do-when-ithappens” approach. Climate change presents a challenge to federal land managers that is unlike anything they have addressed before. First, the variety and magnitude of the effects that climate change may have on federal lands and resources are likely to far exceed those resulting
in print Steve Charnovitz Global Warming and the World Trading System, coauthored by Gary Clyde Hufbauer, Steve Charnovitz, and Jisun Kim, examines the interaction between national measures designed to limit GHG emissions and the operation of the world trading system. The book is published by the Peterson Institute for International Economics (www.petersoninstitute.org). David Freestone Professor Freestone’s new publications include “Modern Principles of High Seas Governance: The Legal Underpinnings,” 39 Environmental Policy and Law 44-49 (2009) and “High Seas Fisheries” in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum, ed.) Oxford University Press, 2008. Lee Paddock Dean Paddock’s paper on “The Role of Public Engagement in Achieving Environmental Justice” will be included in the Proceedings of the 6th IUCN Academy of Environmental Law Colloquium to be published by Edward Elgar Press in early 2010. ★
from any single phenomenon or activity in the past. Climate change is capable of changing meadows to forests, grasslands to deserts, and wetlands to lands completely submerged by rising sea levels. Each of these changes is likely to trigger a cascade of impacts on plants, wildlife, and other components of the affected ecosystems. Second, despite the development of more sophisticated climate models, the location, timing, and magnitude of these effects is highly uncertain, in part because the level of future GHG emissions is unknown. Congress drafted most of the federal land management statutes well before the threats posed by climate change were widely acknowledged or understood. In addition, the scientific foundations of managing natural systems have shifted since the adoption of these laws. The organic statutes of the land management agencies tend to delegate to them broad discretion to govern the use of federal lands and resources, and the courts often defer to the exercise of that discretion. The existing statutory framework provides the agencies with the authority to take some steps to protect federal lands and
resources from the threats posed by climate change. The agencies, however, apparently have been slow to respond to those threats, and the courts have in several instances reversed their decisions for failure to consider climate change impacts as required by NEPA and the ESA. The decisions of the land management agencies to date have not taken adequate account of climate change and, in important respects, the existing statutory framework provides them with insufficient authority to do so. To protect federal lands and resources from the potential ravages of climate change, the agencies must (a) reduce the degree to which federal land use generates GHG emissions that contribute to climate change, (b) take advantage of available opportunities to use federal lands as carbon sinks that help to reduce atmospheric concentrations of the GHGs that contribute to climate change, and (c) prepare for the consequences of any unavoidable climate change by protecting biodiversity on all federal land systems in an effort to make those systems more resilient and therefore more likely to withstand the disturbances resulting from climate change without ecosystem collapse. ★
the George Washington University Law School
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States, too, have been very active in passing energy legislation dealing with issues such as (a) “net metering” provisions that allow small renewable energy producers to sell excess energy into the grid, (b) renewable portfolio requirements, and (c) “feed-in tariffs” that ensure minimum pricing for renewable energy sources such as solar and wind. Energy law will continue to include the traditional energy regulatory practice associated with the Federal Energy Regulatory Commission and state public utility commissions. But increasingly, energy law involves project development and finance, climate issues, siting and land use questions associated with major infrastructure investments such as power lines and off-shore wind farms, tax policies, and permitting and environmental impact review work associated with new power production facilities. While GW Law’s environmental law program will continue to strengthen our course offerings and other learning opportunities in the pollution control and natural resources fields, the Law School’s growing emphasis on energy law allows our students to become fully engaged in this important area of law and public policy. In the year ahead, we will consider adding a new course on Renewable Energy Development, and our annual Shapiro Environmental Law Conference will examine legal issues associated with “next generation” energy resources.
Associate Dean for Environmental Legal Studies
Lee Paddock
[ what’s new ] Maritime Law Seminar
Professor David Freestone will teach a seminar on Maritime Law during the fall 2009 semester. The course will focus on the environmental provisions of the 1982 Law of the Sea Convention; the regional and sectoral regimes for protection of marine endangered species and ecosystems as well as regulation of marine pollution created by oil, ocean dumping, and other causes; the work of UNEP and the IMO Marine Environmental Protection Committee; and the conservation of, and current threats to, marine biological diversity in areas both within and beyond national jurisdiction.
Human Rights Students Obtain Victory for Panama’s Ngöbe Indians Three GW Law students helped secure an injunction against a hydroelectric dam that was threatening to oust the Ngöbe Indians from their villages and irreversibly harm the environment. Carlos Pinto, Joel Singerman, and Jared Manes (all of whom have since graduated) worked on the precautionary measures portion of the Ngöbe Indians of Panama’s petition to the Inter-American Commission on Human Rights as part of the students’ Regional Protection of Human Rights course, led by Professor Dinah Shelton. Over the past two years, the Ngöbe have suffered police brutality and the destruction of their homes due to conflict over the dam. If built, the dam will destroy agricultural land and transportation paths, extinguish fish necessary for the Ngöbe’s survival, and drive them from their land. Scientists also predict that the dam will cause a sharp decline in biodiversity at the UNESCO-protected La Amistad Biosphere Reserve, a nearby international World Heritage Site. The commission has issued an injunction against the dam, and a decision on the merits is still pending. ★
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course includes several energy projects among its case studies. And our Air Pollution and Climate Change courses provide essential context for the practice of energy law. Energy issues have taken center stage in the public policy debate and are likely to stay there for the next several years. Unlike the energy crisis of the late 1970s when the energy issue faded soon after it exploded, energy issues today are driven by more than just price spikes. Critical issues related to climate disruption and national security are also motivating dramatic changes in how we generate and use energy. These changes will have a significant effect on the economy and, of course, a major impact on the practice of energy and environmental law. In fact, energy law is one of the few areas of law practice that appears to be growing despite the weak economy. Three major energy bills have been passed in the last five years, and energy is a key part of the stimulus legislation. In addition, Congress is in the midst of new climate legislation and is expected to pass yet another energy bill this year.
Dinah Shelton
LeRoy Paddock
David Freestone
Professor Dinah Shelton was elected to the Inter-American Commission on Human Rights to serve a four-year term beginning January 2010. She is a prolific author of prize-winning books and countless articles on international law, human rights, and international environmental law. Dinah has served as a legal consultant to the United Nations Environment Programme, UNITAR, the World Health Organization, the European Union, the Council of Europe and the Organization of American States. She is a recipient of the Elizabeth Haub Prize in Environmental Law, recognizing her contributions to the development of international environmental law.
EPA Administrator Lisa Jackson named Dean Paddock to serve as co-chair of the National Advisory Council on Environmental Policy and Technology’s subcommittee on Promoting Environmental Stewardship. David Paylor, director of Virginia’s Department of Environmental Quality, was named as the other co-chair. The subcommittee will make recommendations to the EPA on the role of environmental stewardship programs in meeting the nation’s environmental goals.
At the request of the United Nations Division for Ocean Affairs and Law of the Sea (DOALOS), Professor Freestone served as the moderator of an event to mark the first celebration by the UN of World Oceans Day. Speakers at the event hailed from Barbados, Tanzania, Indonesia, and the U.S. The session was held in the General Assembly Chamber and hosted by the recently appointed legal counsel to the UN and UN Under-Secretary Patricia O’Brien. ★
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[ honors and awards ]
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