Environment Research

The Conflict between Endangered Species and the State Water Plan: Will New Listings under the Endangered Species Act Thwart the State Water Planning Process?

This report examines whether water projects included in Texas’ State Water Plan and certain potential surface and groundwater withdrawals could impact any of the sixteen aquatic species in Texas that the federal government is considering listing under the Endangered Species Act. The report concludes that, overall, the potential listings will not affect the state’s plans to expand access to surface water, as the listings will only impact a small number of projects.

Related Downloads

Financing Conservation: Texas’ Water Infrastructure Bank and the 20 Percent Set-Aside

This report examines the key issues that the Texas Water Development Board will face as it implements the conservation and reuse set-aside included in the state’s new water infrastructure financing scheme. The set-aside was one of the features that helped Proposition 6 to win widespread support and passage in November 2013.

Related Downloads

Paying for Water: The 83rd Legislative Session and the $2 Billion Water Infrastructure Bank

Among Texas leaders, there is a general consensus that the state must act now to ensure its long-term water security, and as the legislature convened for its 2013 session, many observers predicted water would emerge as a marquee issue.  And it did, with lawmakers introducing numerous water-related bills.

Three of these bills are aimed at financing enough water infrastructure projects to assure long-term water supplies for the state: H.B. 4, H.B. 1025 and S.J.R. 1. These bills could have a profound and long-lasting impact on Texas water law and water resources.

In anticipation of the November 5 special election, when voters will whether to approve through a proposition certain key legislative provisions, and of the extensive rulemaking processes that will follow if the proposition succeeds, the Center for Global Energy, International Arbitration and Environmental Law has prepared this white paper. It explains the key provisions in H.B. 4 and explores the contours and inflection points in complex legislation that –aside from a salient few details – remains relatively unfamiliar to the general public and even to those who work regularly on water policy issues.

Related Downloads

Implementing SB 3: Adopting Environmental Flows in Texas

Senate Bill 3 emerged from the Texas Legislature in 2007 as an attempt to create certainty over how the state deals with allocating water to environmental flows. Senate Bill 3 created a process in the Water Code requiring regional stakeholder groups (referred to as Basin and Bay Area Stakeholder Committees or BBASCs) to develop consensus-based environmental flow standards and strategies to meet the environmental flow standards specific to the rivers and bay systems in a particular region. The concept of “environmental flows” describes the flows of water necessary to protect the ecological health of rivers and of the bays and estuaries that are the ultimate recipients of these flows. The consensus of the scientific community is that for environmental flow standards to be adequate to support a sound ecological environment in a stream system, they must include minimum subsistence flows, varying levels of base flows, high flow pulses, and overbank pulses that vary throughout the year. Environmental flow standards establish requirements that govern when a water right holder may remove water from a stream or a river (instream flow requirements), thus protecting that water for instream and bay or estuary environmental needs.

The Water Code directs the Texas Commission on Environmental Quality (TCEQ), after considering the stakeholder committees’ recommendations, to adopt environmental flow standards “adequate to support a sound ecological environment, to the maximum extent reasonable considering other public interests and other relevant factors.” This paper summarizes the environmental flow standard and strategy recommendations made by the six stakeholder committees that submitted reports to the TCEQ and compares these to the standards the TCEQ ultimately adopted. The adopted standards only apply to permits seeking a new appropriation of water or to an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted.

Related Downloads

The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots

This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air toxics nationally. Industrial sources, by contrast, rarely account for more than ten percent of cumulative cancer risks from all outdoor sources of air toxics. This pattern spans multiple spatial scales, ranging from census tracts to the nation as a whole. However it is most pronounced in metropolitan areas, which have the lowest air quality and are home to eighty percent of the U.S. population.

The secondary status of industrial facilities as sources of air toxics has important implications for the current debate over cap-and-trade regulation — the policy instrument of choice for controlling greenhouse gas (GHG) emissions responsible for climate change. Environmental justice advocates have opposed GHG trading in significant part because it could exacerbate inequitable exposures to toxic co-pollutants, not GHGs themselves, in minority and low-income communities. The likelihood of such disparities occurring has remained an open empirical question. The geospatial data reveal that, apart from a few readily identifiable census tracts, the potential for GHG trading to cause toxic hotspots is extremely low. Moreover for the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising the market’s efficiency.

Additional Information

Related Downloads

EPA at Helm’s Deep: Surviving the Fourth Attack on Environmental Law

For much of the past 30 years, the Environmental Protection Agency (“EPA”) and the laws it administers have been under siege from powerful economic, ideological and political actors who believe that the companies subject to the EPA’s regulatory authority should have greater freedom to go about their business unimpeded by “senseless” and “burdensome” regulations. The assaults came in three waves that peaked during the first years of the Reagan Administration, the first year of the 104th Congress, and the first six years of the George W. Bush Administration, respectively. The EPA seized the offensive during the first two years of the Obama Administration, though was driven back by a reinvigorated business community that took advantage of an economic crisis, what McGarity calls the “fourth assault.” Whether the EPA and the foundational environmental laws that it implements will survive the fourth assault is by no means clear.

Related Downloads

Liquid Assets: Groundwater in Texas

This essay details the changes in groundwater ownership and management in Texas that have been triggered by the Edwards Aquifer Authority v. Day case. Part I establishes the foundation of groundwater management that has haltingly sought to more closely align multiple water rights regimes in Texas. Part II examines the various approaches to regulating groundwater, including those that create ownership for groundwater in place.  Finally, in light of the Day case and the contest over the permissible reach of regulation, this essay considers alternatives for allocating both the value and utility of groundwater, as well as assesses the possibilities the current state of affairs leaves us.

Related Downloads

Are We Killing the Rain? Meditations on the Water Cycle and, More Particularly, on Bioprecipitation

This essay reviews the multidisciplinary science of bioprecipitation, using it as a lens through which to envision integrative options for land use and water resource management in a new light.  Bioprecipitation is the hypothesis that microbial ice nucleators, including Pseudomonas syringae, may be highly adapted causal agents of rain and snow.  To the extent that land use policies, including pathogenic eradication campaigns, may inhibit the local production of biotic ice nucleators, they may be responsible for ‘killing’ a generative source of rain.  Such possibilities should invite major interest in this gathering of field research.  Assuming that it contributes to richer comprehension of the hydrological cycle’s dependence on circulatory biota, these findings should help to stimulate assimilative integrated reformulations of land use and water management policies and norms.

Related Downloads

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

This article’s investigation into the “agency for legitimacy” proceeds in five steps: Part I introduces the concept of “administrative constitutionalism,” which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy.  It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out.  Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors’ argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable.  Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism.

Related Downloads

Revisiting the Impact of Judicial Review on Agency Rulemakings: An Empirical Investigation

This study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals and discovers significant disconnects between popular understanding of judicial review and rule-making reality. Of these air toxic rules, the courts were summoned to review only a small fraction (8%), despite evidence that many air toxic rules may have problems, at least from the public interest perspective.  Moreover, although virtually all of the litigation brought by public interest groups against the EPA’s air toxic rules was successful, the resulting victories have not yet had much impact in practice.  For most of its vacated regulations, the EPA has either ignored or limited the courts’ opinions and has not re-promulgated revised rules.  Thus, while the tenor of the opinions seems to re-affirm the courts’ role as guardian of the public interest, the actual impact of these opinions on agency practice may be less influential than one might expect.  A concluding section takes the analysis one step further and explores the possibility that the net effect of judicial review may actually be more perverse.  The ability of the dominant parties to threaten the agency with expensive and time-consuming litigation could provide these groups with legal leverage that, in the aggregate serves to further undermine the agency’s ability to act on behalf of the public interest.

Related Downloads

The End Game of Deregulation: Myopic Risk Management and the Next Catastrophe

By using the Kingston Fossil Fuel Plant’s spill into the Emory River as a case study, this article offers several explanations for why the twentieth century dynamic of crisis and reform has disappeared in the early twenty-first century. In Part I, it is argued that regulated industries dominate regulatory debates on Capitol Hill and at the federal agencies to an unprecedented extent. Part II examines what is known about the Kingston spill and the implications of that information for recurrence of such events. Part III explains how the EPA and Congress responded to this disaster, highlighting how politics driven by a deregulatory ideology eventually took over the EPA’s science-based rulemaking process. Part IV offers suggestions for rebuilding regulatory agencies like the EPA and for restoring public trust in government.

Related Downloads

Habitat Conservation Plans and Climate Change: Recommendations for Policy

The Center has released a report, coauthored by Center Director Melinda Taylor and Professor Holly Doremus of the University of California, Berkeley’s Center for Law, Energy and the Environment, that makes policy recommendations to address the impacts of climate change on endangered species.  The report focuses on habitat conservation plans, a tool used by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, to protect habitat for rare species on private land.  Over 670 habitat conservation plans have been approved by the Services, and the plans cover more than 47 million acres of land across the United States.  Professors Taylor and Doremus note that most scientists agree that climate change is likely to affect habitat for many species.  The Services should consider policy options for adapting habitat conservation plans to ensure that the habitat protected continues to benefit the species the plans were designed to accommodate.

Related Downloads

Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emissions

In this Article, the authors trace the engagement and the influence of interest groups over the entire life cycle of a complete set of complex EPA rules that set emissions standards for the industrial release of air toxins. In particular they focus on three of the most worrisome phases of administrative process where imbalances in interest group engagement and influence may be occurring. The thesis of this study is that imbalances in interest group engagement are occurring at critical albeit somewhat obscure stages of the rulemaking life cycle and that these imbalances are impacting the substance of the rulemaking project.

This Article proceeds in five parts. Part I explores three stages in the rulemaking life cycle that may be afflicted with imbalanced interest group engagement that in turn might distort the outcome of the rulemaking project.  Part II describes the methods of the Article, which examine the nature of interest group engagement and activity at these problem stages in a complete set of rules promulgated by EPA governing the industrial emissions of air toxics.  Part III describes the findings and Part IV collects information from disparate sources in detective like fashion to explain some of the surprises and new questions that emerge from this research.  In the Conclusion, the authors retell the store that emerges from their data and consider whether it suggests more pervasive problems in administrative law that will benefit from further study.

Related Downloads

Lord Coke, the Restatement, and Modern Subsurface Trespass Law

The First Restatement of Property provides that “‘property’ . . . denote[s] legal relations between persons with respect to a thing.” The “thing” considered in this article is the subsurface of real property, and the legal relationship involved in the extent to which persons may deal with invasions of their right to exclude trespassers is a fundamental incident of property ownership, this right, like other incidents, neither is nor should be absolute. The precise focus of this article is to consider how courts have treated subsurface invasions and to argue that the Second Restatement of Torts, which states that any subsurface intrusion is actionable, should be revised. The right to exclude trespassers from the subsurface of real property should be much more limited: subsurface trespass should not be actionable whenever the trespasser’s subsurface intrusion accomplishes an important societal need (including private commercial needs) if the subsurface owner suffers no actual and substantial harm. And because courts have largely refused to find harmless deep subsurface invasions actionable, the ALI should consider whether the Second Restatement of Torts, which essentially embraces Lord Coke’s ad coelum doctrine, accurately reflects the trend of subsurface trespass case law.

Related Downloads

Texas Water Will Suffer Under Plan to Lower Standards

This is an excerpt from the published online post to statesman.com by McGarity:

“The recent proposal by the Texas Commission on Environmental Quality [TCEQ] to downgrade the state’s water quality standards for most of the surface water in the state should trouble all who believe they have a right to swim, fish or simply wade in a cool Texas stream without the risk of contracting a gruesome waterborne disease.

As recently reported in the American-Statesman, TCEQ plans to change the standards for the vast majority of Texas rivers and streams from the current “contract recreation” designation, which allows only 126 colonies of E. coli bacteria, to new designations that would allow 206 colonies in some “swimmable” waters and up to 630 colonies in waters used primarily for fishing and boating.

The move is supported by the Texas dairy industry and by some cities that are having difficulties controlling their sewage discharges. The Texas Association of Dairymen argues that without the changes dairy farmers might have to build fences to keep their cattle away from rivers, thereby losing valuable acreage. The cities warn that they might have to charge higher rates for sewage treatment.”

To continue reading, please go to http://www.statesman.com/opinion/mcgarity-texas-water-will-suffer-under-plan-to-392013.html

A Cautiously Pessimistic Appraisal of Trends in Toxics Regulation

David Adelman’s article provides an overview of (at the time the article was written) recent scientific developments and their implications for toxics regulation. Adelman advocates that the Environmental Protection Agency and National Institute for Environmental Health Sciences invest modestly in toxicogenomic research. The final part of the Article examines promising opportunities to improve the regulation of toxic substances, which is the subject of renewed interest in Congress and rising support from a broad cross-section of stakeholders.

Related Downloads

Administrative Law, Filter Failure, and Information Capture

This article discusses how parties can capture the regulatory process using information that allows them to control or at least dominate regulatory outcomes (the information capture phenomenon). It then traces the problem back to a series of failures by Congress and the courts to require some filtering of the information flowing through the system.  Rather than filtering information, the incentives tilt in the opposite direction and encourage participants to err on the side of providing too much rather than too little information.  Evidence is then offered to show how this uncontrolled and excessive information is taking a toll on the basic objectives of administrative governance.  The article closes with a series of unconventional but relatively straightforward reforms that offer some hope of bringing information capture under control.

Related Downloads

Misunderstanding Models in Environmental and Public Health Regulation

Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers.  Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.

Related Downloads

Understanding Environmental Models in Their Legal and Regulatory Context

Environmental models are playing an increasingly important role in most jurisdictions and giving rise to disputes.  Despite this fact, lawyers and policy-makers have overlooked models and not engaged critically with them.  This is a problematic state of affairs.  Modeling is a semi-autonomous, interdisciplinary activity concerned with developing representations of systems and is used to evaluate regulatory behavior to ensure it is legitimate.  Models are thus relevant to lawyers and policy makers but need to be engaged with critically due to technical, institutional, interdisciplinary and evaluative complexities in their operation.  Lawyers and policy-makers must thus think more carefully about models and in doing so reflect on the nature of their own disciplines and fields.

Related Downloads

Climate Change, Federalism, and Promoting Technological Change

This chapter of Beyond Environmental Law: Policy Proposals for a Better Environmental Future examines the level of government—state versus federal—at which an Environmental Competition Statute could be most effectively implemented.  After years of inaction, the federal government is now debating legislation to address climate change. Recent federal action follows a period of rapid policy development by state and local governments.  In the absence of strong federal leadership, a growing number of states have filled the void in climate policy with a broad array of programs, including regulation of greenhouse gas (GHG) emissions from vehicles and power plants, renewable energy mandates, GHG emissions registries, and energy-efficiency initiatives.  The question Adelman addresses is how state initiatives can operate in conjunction with federal programs to induce the technological change needed to mitigate climate change.  This chapter seeks to refocus attention on the independently valuable objective of inducing technological change through measures like an Environmental Competition Statute. It then explores several avenues for state to induce technological change, whether through technological innovations or adoption of existing technologies.  Market dynamics will differ according to whether states adopt policies in the shadows of federal legislation or instead act alone; both scenarios are examined herein.  The chapter demonstrates that technology-forcing laws such as an Environmental Competition Statute, can be effectively implemented by state and federal governments.  It concludes with specific recommendations for harmonizing state and federal climate change policies

Related Downloads