Author: Steph Tai

0

Floods and Agricultural Conservation

Today’s Washington Post has an article on suggestions by natural resources professors that the recent flooding in Iowa have some manmade bases. Some of the human-related causes include increased wetlands development, increased use of subsurface drainage pipes, lowered crop rotation (away from crops that put down deep roots, and towards shallow-rooted crops like corn), and additional generation of sediment due to agricultural and development practices.

Many of these causes of flooding relate to agricultural practices. But whether the 2008 Farm Bill–the remainder of which was passed last night over an earlier presidential veto (complicated story)–will happen to address some of these potential problems will probably be in debate. A focus on growing corn is still likely to increase, given some of the biofuels production incentives contained in the 2008 Farm Bill.

Moreover, as environmentalists critical of the new Farm Bill have pointed out, the enrollment cap in the Conservation Reserve Program (in which farmers are given incentives to take environmentally sensitive lands out of crop production) is reduced from 39.2 million acres (in the earlier version of the bill) to 32 million acres in the current Farm Bill. And the enrollment cap for the Wetlands Reserve Program (in which farmers are given incentives to reserve wetlands) is reduced by 25%. And the 2008 Farm Bill didn’t contain the stronger of the contemplated Sodsaver provisions, which would have created disincentives for farmers to plow up native prairie grasses.

On the other hand, the Farm Bill also contains the first federal energy crop program to encourage the growth of cellulosic energy crops like switchgrass, which have deeper roots, And some of the payouts for the different voluntary conservation programs have increased, potentially increasing the incentives for farmers to enter these voluntary programs (in an attempt to address earlier criticisms that too often, farmers would find it more financially rewarding to opt out, rather than in).

Me, I’m still going through the various relevant provisions of this massive +200 page document to see what I think. But I’m interested in hearing from those of you who are more immersed in the agricultural side of things!

5

Hypermiling and EPA vehicle efficiency estimates

Thanks for the welcome, Daniel!

I’m just getting settled into being back in Madison after a long road trip to Texas and back, during which my partner D was generous in driving the entire time, because I am a wimpy (and not particularly skilled) driver. We decided to drive partly to reduce travel costs, and partly to lower our carbon footprint.

To make the drive more interesting, my partner (during stretches of little or no traffic) decided to practice some hypermiling techniques. The idea of hypermiling is to use various driving practices, like pulsing and gliding in order to exceed the US EPA’s estimated fuel efficiency on one’s vehicles. Some of the techniques used by hypermilers are are relatively noncontroversial (like keeping your car maintained), while others (like drafting off trucks to avoid wind resistance) are much more controversial (and many hypermilers avoid them). According to D, some of these techniques are more “fun” (like thinking about ways to use hills to one’s advantage, and planning one’s routes to avoid using the brake as much).

So what’s this foray into hypermiling accomplished? In our blue ’05 Prius, we managed to get over 70mpg (EPA’s combined city/highway estimate is 46 mpg), which is still nowhere near the over 100mpg that some hypermiling marathoners have achieved. In his defense, D’s just starting. But he still might need more practice before being anywhere near competitive in the upcoming 2008 Hybridfest MPG Challenge.

One interesting thing is the relationship between hypermiling and official estimated fuel efficiencies for vehicles. If gas prices keep increasing, will more people adopt some of the more efficient driving techniques of hypermiling? After all, there’s already been studies that suggest that the amount of driving has decreased as a result of high gas prices. So what if the amount of driving not only goes down, but the actual driving is done with gas efficiency in mind? Is there a point at which the EPA must change its techniques for estimating vehicle efficiency to adapt to changing driver practices?

Update: As commenter Jon Garfunkel points out, there’s a lot more nuance to this.

The historically cheap price of gas in the U.S. (and vast size of the country, and commutes) hadn’t encouraged enough drivers to think about buying fuel efficient cars. So the Energy Tax Act of 1978 added the “gas guzzler tax” to push the disincentives up front to the purchase of a new car (strictly speaking, it’s assessed to the manufacturer, who duly passes it along in the total sticker price.) After all, even the most economically rational consumer can best weigh in the cost of gas today, not in the future, when they’ll be buying most of it.

There’s one twist: the gas guzzler tax is calculated based on the EPA mileage estimate. And the EPA in fact changed their formula a year ago. They changed it not to reflect the obscure hypermileage subculture*, but instead some more real world factors of like the A/C, quick acceleration, etc. And thus it increased the number of cars subject to the gas guzzler tax. If fellow liberals here are looking for administrative measures over the last eight years to celebrate, this could be one of them.

2

Bye All!

I just wanted to echo Kim and Alice and thank everyone here for letting me guest-blog this month! It was a fun experience, even though I didn’t end up getting the chance to post as much as I’d have liked to. And it was a rewarding experience, reminding me how far we’ve come since the early days of plopping everything into html; the level and vigor of the discussions extended well beyond that of the posts, into the comments and discussions themselves, which were thorough and thought-provoking. So thanks, and keep up the great work!

14

Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that “when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can’t say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not “uncritically.” This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this “not uncritical” examination plays out in the future, and how “uncertainty” is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high–which it could be, given how one could argue that all of science is “uncertain” and “unstable” to some extent–then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet “uncertain” risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it’s treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve “trans-scientific determinations”–determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you’ve got courts deferring to Congress when it “act[s] in areas fraught with medical and scientific uncertainties,” but you’ve also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks–which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you “tell” what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn’t apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I’m still thinking this through! So I’d really appreciate further thoughts and suggestions!

1

Woman Town?

Salon.com has an interesting blurb on “Woman Town,” an experimental town inside the Shuangqiao district in the Chongqing municipality of China dedicated to being a place where women make the decisions. It’s an interesting concept, though I’m not entirely sure what the point of it is. Is it to respond to what’s seen as a predominantly patriarchal culture? Is it meant more as an amusement for tourists? Time will tell, but it’ll be fascinating to see whether or not any different local legal approaches develop as a result of an institutionalized “female dominated” structure. Keep your eyes peeled, Carol Gilligan!

0

Agriculture and the Pharmaceutical Industry

In this policy brief, the Oakland Institute argues that “The enormous public resources invested in agriculture have benefited [pharmaceutical] companies by promoting the sale of [genetically engineered] seeds over and above their actual value and by allowing them to multiply their research efforts at minimal cost through collaborations with public institutions.” It’s an argument that I’ve seen before, although this is perhaps the most reader-friendly version that I’ve seen.

What I find interesting is the framing of subsidies as occuring through the (semi-)public works of “public-private partnerships and the patenting of university generated knowledge,” because it seems analogous to earlier public-works agricultural subsidies: that is, big water projects. What I also find interesting (and maybe it’s because of my relative newness to this field, and my focus more on the agricultural/environmental side of things) is its emphasis on the companies as part of the pharmaceutical industry, rather than on companies as part of Big Agriculture (which is more of what I see in the agricultural literature). I think this further highlights the importance of promoting dialogue between agricultural reform advocates (who often focus more on direct subsidies) and biotech patent reform advocates, as well as a reassessment of earlier public works projects and their unintended detrimental effects.

0

More Discussion of Pedagogy: Transactions for Litigators

Confession: By practice, I’m mostly a litigator. I’ve never done any transactional work. I’ve only rarely been called to do regulatory planning, and even then I’ve only done so in the context of settlements, or avoiding very-pending cases. But I know that this is only the tip of the legal practice iceburg.

So I’m trying to figure out how to incorporate more transactional ideas into my pedagogy. One thing I’ve been trying to do (albeit in a limited manner) in my natural resources class is to create “planning problems”–for example, asking students, given the constraints imposed by the cases we read, what can an agency do to more fully manage water resources? Or, given a certain regulatory effect that an agency might want to have, how can they best avoid takings claims?

But I’m certain there must be more I can do, stuff that I might be blinded to because of my practice tunnel vision. So I’m wondering, what other types of exercises (or even questions) have people tried to incorporate into the classroom setting? What works? What doesn’t? Etc etc etc.

6

A Big Day for Enviros

Hi everyone! I’m psyched to be able to blog here, and to start on what to me is a really great legal day.

So how about that Supreme Court? And its decision in the two Clean Air Act cases today? The blogosphere’s been all over this already, but I have to say, as someone whose first Supreme Court amicus briefs (team-written with some very wonderful colleagues, I should say) were in these two cases, today was incredibly satisfying.[*] (Or, in more cas-speak: OMGWOW.)

One thing I’ve been trying to emphasize in my classes, though (perhaps to the frustration of my students) is that litigation is not the end all and be all. And these cases illustrate that. The Supreme Court’s decision in the global warming case, for example, is merely a remand back to the EPA to consider the petitioners’ request for a rulemaking–albeit one taking into account the Supreme Court’s guidance in Mass v. EPA. The EPA, therefore, could conceivably still reach the same decision on remand, albeit with more legally defensible reasoning. The PSD (Prevention of Significant Deterioration) case involving Duke Energy also involves a remand, and allows the lower court, on remand, to consider whether EPA’s allegedly inconsistent positions on this issue is “retroactively targeting twenty years of accepted practice.”

My anticipatory frustration is that although what happens next is as much a part of the whole story as the Supreme Court proceedings, there will be somewhat less press coverage of those later administrative (and political) proceedings. This is not to blame the press, really. I mean, it’s reflective of legal teaching, even, where the focus is more on the individual court “cases,” and less on the overall outcome (regardless of where the outcome “arises”). Hell, I see this in administrative law, where students are a lot more excited about reading current individual cases, than reading draft rulemakings and the comments made about them.

So I guess this is just a rambly way of getting to a question: how does one effectively “teach” the interaction between individual case decisions, administrative decisions, and broader societal politics? I don’t want to make my classes into any sort of poli sci/public administration class, and certainly couldn’t do effectively even if I wanted to. Yet I also believe that if we’re training students to advocate as effectively as possible for their clients, then we as educators should give them practice in thinking beyond strategizing about individual cases.

[*] A short recap: In Massachusetts v. EPA, the Supreme Court held that the EPA did have the authority to regulate greenhouse gases, and required it to re-review the plaintiffs’ request for a rulemaking. According to the Supreme Court, “Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” And in Environmental Defense Fund v. Duke Energy, the Supreme Court upheld the EPA’s regulations requiring permits for changes in power plants that lead to an annual increase in emissions, rejecting Duke Energy’s argument that permits can only be required when the changes lead to an increase in the hourly rate of emissions.