Great Lakes Law

Eleventh Annual Great Lakes Water Conference at University of Toledo College of Law

Since 2001, the University of Toledo College of Law has hosted an annual Great Lakes Water Conference that brings together leading academics, policy makers, and legal practitioners to explore the range of legal issues facing the Great Lakes. I always make the trip down to Toledo for this conference, and find it an excellent forum to debate current issues and exchange cutting-edge ideas.  Professor Ken Kilbert runs a superb program every year, and this year’s conference on November 4 has another great lineup of topics and speakers.

The keynote speaker will be John Goss, Asian Carp Director for the Council on Environmental Quality. I’m moderating a panel titled “Regulating Water Use Within the Great Lakes Basin Under the Compact” featuring opponents and proponents of the bill vetoed by Ohio’s governor this summer (note that Brian Barger of Brady, Coyle & Schmidt will be speaking on the panel instead of former Ohio Senator – and now Judge – Tim Grendell who is unable to attend). The other panels are “Whose Shore Is It?” (addressing ownership and public access disputes along the Great Lakes shores), and “Hydraulic Fracturing and Water Resources” (exploring the law and impacts associated with the natural gas production method known as ‘fracking’). For the full agenda and registration information, see the conference brochure.

Great Lakes Week in Detroit – IJC Biennial Meeting and more

The International Joint Commission’s Great Lakes Water Quality Biennial Meeting on October 12-14 is anchoring Great Lakes Week Detroit 2011. The Great Lakes Commission and the Healing Our Waters Coalition will also be holding their annual meetings as part of the event, which should draw hundreds of Great Lakes advocates and policy makers to Detroit and the Wayne State University campus.

Pursuant to the Canada-US Great Lakes Water Quality Agreement, the IJC convenes the Biennial Meeting to report on progress toward restoration of the physical, chemical, and biological quality of the waters of the Great Lakes basin ecosystem. Biennial Meeting workshops will focus on key challenges to water quality, including harmful and nuisance algae, aquatic invasive species, beach health, fish consumption, and chemicals of emerging concern. A special plenary session will focus on priorities for 2011-2013, providing the public with an opportunity to comment on IJC plans for future study. As the U.S. and Canada reach the final stage of negotiations regarding an updated Great Lakes Water Quality Agreement, the Biennial Meeting will be a critical opportunity for public participation in Great Lakes governance. 

Registration for the IJC Biennial Meeting is free and open to the public, but you should register in advance, especially if you want to save a seat for the keynote session with former Vice-President Al Gore on Thursday afternoon. For more details on all events, see the IJC’s schedule and the Great Lakes Week detailed agenda.

MI H2Objective Conference: Research Shaping Michigan’s Water Future

This week, Wayne State University is hosting an exciting interdisciplinary water conference organized by the University Research Corridor – an alliance between Michigan State University, the University of Michigan and Wayne State University. The MI H2Objective Conference - Research Shaping Michigan’s Water Future will take place on September 29 and 30 in the McGregor Memorial Conference Center and Community Arts Auditorium on the Wayne State University campus. The conference “aims to connect scientists, researchers, and community leaders working in academia, industry, and government from across the state of Michigan to explore water research at the interface of Water and the Landscape, Water and Health, and Water and Energy. The future of Michigan's water resources will be discussed through cross-cutting themes of technology, climate change, and sustainability.” For more info and to register, see the conference webpage.

Property rights in wind – lessons from Texas oil, gas, and water law

Alan Alexander, a former student who continues to work with me on several projects, has just published a superb note, “The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest.” Looking at Texas, a historic leader in energy law, the note draws lessons from management of other resources such as oil, gas, and water in proposing legal reforms for property rights in wind. This is an increasingly important area of the law, as wind energy becomes more viable and valuable, and there are many comparisons with water law. The full citation is Alan J. Alexander, “The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest,” 44 U. Mich. J.L. Reform 429 (2011), and the note is available online through SSRN. Here’s the full abstract:

In 2011, Texas is again at the forefront of an energy boom: the wind energy boom. In 2006, Texas surpassed California and became the U.S. state with the most installed capacity to produce wind energy, and Texas’ level of installed capacity has continued to grow. But the law has not kept pace with this growth. Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed to oversupply and rampant waste of oil. Similarly, lack of regulation of the developing wind energy industry could lead to wasteful practices regarding wind energy development. This Note argues that the Texas Legislature should pass laws clarifying that wind is a natural resource under the Texas Constitution, and that to promote “[t]he conservation and development” of wind as a natural resource, the Legislature should statutorily recognize wind rights as an interest severable from land ownership.

Australian law school dean to speak at Wayne Law on protecting whales under international law

Next week, Wayne Law’s Program for International Legal Studies is honored to host a public lecture by Natalie Klein, dean and professor at Macquarie Law School in Sydney, Australia. Dean Klein will be speaking on "Protecting Whales under International Law: Australia's case against Japan before the World Court." The event is on Wednesday, March 23 from 12:15 - 1:30 pm in the law school’s Partrich Auditorium (lunch will be provided).

Dean Klein teaches and researches in various areas of international law, with a focus on law of the sea and international dispute settlement. She is the author of Dispute Settlement and the UN Convention on the Law of the Sea (Cambridge University Press, 2005) and regularly provides advice, undertakes consultancies, and interacts with the media on law of the sea issues. Prior to joining Macquarie Law School, Dean Klein was counsel to the Government of Eritrea and a consultant in the Office of Legal Affairs at the United Nations. This should be a great event with a leading international expert in the field. See the online event page for more info. 

Wayne Law, Windsor Law, and the Great Lakes Environmental Law Center launch the first transnational environmental law clinic in North America

Wayne Law and Windsor Law, working in partnership with the Great Lakes Environmental Law Center, have formally announced the launch of the first transnational environmental law clinic in North America. This is a tremendous accomplish for all the institutions involved and for the region as a whole. The new transnational partnership will allow students from both schools to gain practical experience working on US-Canadian environmental issues such as energy development in the Great Lakes. It will also give the Great Lakes Environmental Law Center the legal resources to effectively and strategically protect the Great Lakes from threats such as invasive species on both sides of the border. Nick Schroeck, the Great Lakes Environmental Law Center’s Executive Director, and Prof. Marcia Valiante of Windsor Law, will be directing this new program. For more details, see the joint announcement and recent coverage in the Windsor Star and Detroit Legal News.

Update: Fantastic coverage from Michigan Lawyers Weekly 

Great Lakes Environmental Law Symposium - issues and challenges facing the Chicago Area Waterway System

On Friday, March 4, 2011, IIT Chicago-Kent College of Law and the Chicago Park District will co-host the Great Lakes Environmental Law Symposium focusing on the issues and challenges facing the Chicago Area Waterway System. This timely event will address the ongoing Asian carp litigation (the panel I’m moderating), potential changes to disinfection requirements for the Chicago River, and whether officials should pursue hydrologic separation of the Great Lakes and Mississippi River watersheds. Susan Hedman, EPA Region 5 Administrator, will give the keynote address.

This should be a great event, check out the agenda online. For more information, registration, etc., see the Chicago-Kent Environmental Law Society’s Great Lakes Environmental Law Symposium webpage.

Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes

I've posted a new article on oil and gas drilling in the Great Lakes, examining the existing laws and policies and offering some pragmatic recommendations for reform. The article was presented at the symposium “Learning from Disaster: Lessons for the Future from the Gulf of Mexico” hosted by the Environmental Affairs Law Review of Boston College Law School last November. The article is titled "Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes" and the citation is Boston College Environmental Affairs Law Review __ (Forthcoming, Issue 2, 2011). (Download the full article here.) The abstract:

In the wake of the Gulf oil blowout disaster, there is renewed interest in protecting the freshwater of the Great Lakes from the risks of oil drilling. The region has significant oil resources that would be economically and technologically accessible through drilling in the Great Lakes. The Great Lakes bottomlands and shorelines are subject to the regulatory jurisdiction of two countries – the United States and Canada – and eight American states. While the existing legal regime lacks uniformity and is characterized by jurisdictional inconsistency and potential for transboundary pollution externalities, oil drilling is mostly prohibited. With strong public support for protecting the Great Lakes, there is an opportunity to further strengthen oil drilling regulation in the Great Lakes through international and domestic law.

 

 

Water policy research exchange in Japan

I’m very fortunate to be spending a week in Japan thanks to the Woodrow Wilson International Center for Scholars. The research exchange is funded by the Japan Foundation’s Center for Global Partnership through the Woodrow Wilson Center’s China Environment Forum in partnership with Institute of Developing Economies in Japan and Nanjing University’s Center for Environmental Management and Policy in China. The exchange aims to build a network of water policy experts to solve pollution problems in Lake Tai, one of China’s most polluted lakes. My former colleague Andy Buchsbaum took part in the exchange in China earlier this year, but he couldn’t make this trip to Japan, and I was thrilled to be his back up and bring a Great Lakes perspective to the program.

While the ultimate focus is solving water pollution problems in China, I’ve spent the past few days getting a crash course in Japanese culture, government, history, and law. From my American perspective, there are some fundamental aspects of Japan’s society that shape its water policies.

First, Japan is a very prosperous and densely populated country with relatively minimal natural resources, including freshwater. The whole country is similar to the densely populated East Coast of the U.S., with massive metropolitan regions squeezed into a small land base. This forced Japan to aggressively address environmental issues in the 1970s, about the same time that modern environmental policy began in the U.S. As a result, Japan’s environmental management and practices are well established and in many ways ahead of ours.

Second, Japan’s culture overtly values the group over the individual. Country, company, and community take priority over any single person. With a strong cultural allegiance to the group, Japan can operate with a relatively limited government in terms of regulation and taxation. I’m just beginning to understand this fundamental difference from America, where individual freedom is far more valued. Japan is also almost completely homogenous ethnically, with the diversity we see in America noticeable absent. I wouldn’t trade places (especially after I was stopped by the local police to check my passport and papers), but Japan’s cultural value on the collective good makes managing common resources like freshwater far easier.

Finally, Japan has a very different cultural and religious view towards nature. Many Japanese people practice elements of Shinto, which sees nature as embodying the divine concept of “kami.” This creates a spiritual view towards water, reflected in subtle and not-so-subtle ways (such as Shinto shrines erected in shallow waters). Shinto beliefs thus provide a strong foundation for a deep and respectful relationship with rivers and water itself.

A few short paragraphs cannot do complete justice to Japan’s rich and unique culture, and it’s one of the reasons research exchanges like this program are invaluable for better understanding other countries’ environmental laws and policies. Cultural differences aside, there is much we can learn from each other in terms of nuts and bolts water protection and management, and I’m grateful for the opportunity to broaden my perspective.   

Learning from Disaster: Lessons for the Future from the Gulf of Mexico Symposium

The Environmental Affairs Law Review of Boston College Law School, a journal of law, science, and policy, is hosting a symposium “Learning from Disaster: Lessons for the Future from the Gulf of Mexico” Friday November 12. Here’s the official description:

Twenty years ago Boston College Law School researched legal issues arising from the Exxon Valdez spill for the State of Alaska Oil Spill Commission. This year, the Boston College Environmental Affairs Law Review is drawing upon scholars from around the nation and the world to contribute similarly effective research and policy analysis in the wake of an even larger catastrophe, the BP Deepwater Blowout in the Gulf of Mexico. The symposium is prospective: we will focus on learning from the current crisis and developing ideas to prevent similar tragedies in the future. Presenters will offer critiques of the current regulatory structure and propose changes in regulation they believe necessary to avert another crisis. The keynote speech will focus on how the spill and the resulting cleanup efforts have affected the ecosystem in the Gulf and along the shore.

Dr. Riki Ott, a marine toxicologist, community activist, and former commercial salmon “fisherm'am” who experienced firsthand the devastating effects of the Exxon Valdez oil spill will be giving the keynote address. Dr. Ott will be introduced by Professor Zyg Plater, who chaired the State of Alaska Oil Spill Commission’s Legal Task Force over a two-year period after the wreck of the M/V Exxon-Valdez. I’ll be speaking about oil drilling policy in the Great Lakes in the wake of the Gulf blowout disaster, presenting some recommendations for reform (paper forthcoming). Check out the conference website for more info and to register online.

Tenth Annual Great Lakes Water Conference at University of Toledo College of Law

Since 2001, the University of Toledo College of Law has hosted an annual Great Lakes Water Conference that brings together leading academics, policy makers, and legal practitioners to explore the range of legal issues facing the Great Lakes.  I’ve made the trip down to Toledo almost every year for this conference, and always find it an excellent forum to learn and debate current issues and exchange cutting-edge ideas.  Professor Ken Kilbert runs a superb program every year, and this year’s conference on November 5 has another great lineup of topics and speakers.

Tim Eder, Executive Director of the Great Lakes Commission (and my former colleague at National Wildlife Federation), will be the keynote speaker. I’m doing double duty at the conference, moderating the “Drugs in Our Waters” panel (focusing on pharmaceuticals that go down our toilets and threaten aquatic life and human health) and speaking on the “Compact, Carp, Shores and Spills” panel (addressing a series of hot legal topics affecting water resources and the Great Lakes – I’ll cover oil drilling and spills). The “Renewable Energy: Yes In My Back Yard” panel (exploring challenges faced by off-shore wind turbines and solar energy facilities) also looks fantastic.  For the full agenda and registration information, see the conference brochure.

New edition of Michigan Environmental Law Deskbook available free online

The Michigan Environmental Law Deskbook has been significantly revised for its second edition, and is now available for free online through the Environmental Law Section of the State Bar of Michigan. The new edition is edited by Jeff Haynes and Gene Smary, two prominent environmental attorneys in the state, and features chapters authored by a long list of the leading practitioners in every subfield of environmental law. This is an exceptionally useful resource, written by the experts, and now available for free online in multiple electronic formats. Editor Jeff Haynes explains:

The Deskbook is a completely rewritten version of the first edition published in the 1990s. The Environmental Law Section believes that the Deskbook should be available for free as a part of the Section’s mission to educate the public. The chapters in the Deskbook come in two versions:  an HTML web-based version that can be viewed on any screen (PDA, iPad, etc.), and a PDF format suitable for printing. One important benefit of the format is that all citations are hyperlinked directly to cases, statutes, rules and Michigan Department of Natural Resources and Environment web pages. These links allow readers to view the original source material immediately.

In addition to co-editing the volume, Jeff Haynes also authored the comprehensive chapter on the Michigan Environmental Protection Act. That law is the focus of the Anglers of the AuSable case that was before the Michigan Supreme Court yesterday. That's a great reason to check out the chapter in either the HTML-web format or as a .pdf document. Thanks to Jeff, Gene, and all of the contributing authors for putting together a fantastic resource for attorneys, law students, policy makers, and most importantly the public.

Update: Wetland law is another unique subfield of environmental law in Michigan. The state protects wetlands pursuant to the Goemaere‑Anderson Wetland Protection Act, codified in Part 303 of NREPA, MCL 324.30301 et seq., and is also one of just two states that have been delegated authority to administer a wetland protection program pursuant to § 404 of the Clean Water Act (CWA). The Deskbook has a superb chapter on wetlands (web/HTML and .pdf) co-authored by Andrea Hayden, a board member of the Great Lakes Environmental Law Center and attorney with Fausone Bohn LLP (and one of my former students). For anyone interested in wetland law, I highly recommend Andrea’s chapter in the Deskbook, it’s a fantastic resource.

New edition of “Environmental Law and Policy: Nature, Law, and Society” now in bookstores

Just in time for the start of the new school year, the new edition of our casebook Environmental Law and Policy: Nature, Law, and Society has been sent to bookstores.  I was honored to join Zygmunt J.B. Plater, Robert H. Abrams, Robert L. Graham, Lisa Heinzerling, and David A. Wirth in co-authoring the 4th edition of this leading environmental law book, published by Aspen.

Environmental Law and Policy: Nature, Law, and Society offers a unique approach to making sense of the complex world of environmental law by focusing on the legal tools and strategies available for addressing environmental harms through regulation and litigation.  It covers nearly all aspects of the field, including nuisance and toxic torts, all of the major federal environmental statutes, and constitutional, property rights, and international law issues (see the table of contents for more details).  My contributions to the book focused on the Clean Water Act (filling the shoes of former co-author William Goldfarb), the Clean Air Act (filling in for Lisa Heinzerling while she served the Obama Administration as a special advisor on climate change issues) and the National Environmental Policy Act.  Huge thanks to my research assistant Nathan Dupes for all of his help in this project.

Apologies for the sentimentality, but this book has special importance for me.  When I was a twenty-year-old student at the University of Michigan School of Natural Resources and Environment, I took an environmental law class with a visiting professor, Robert “Bo” Abrams, using the first edition of his Environmental Law and Policy: Nature, Law, and Society casebook.  I was probably more interested in the girl sitting next to me – a pretty blond named Jenny that I had just started dating and a few years later married (I think she also did better in the class than me).  But Professor Abrams is an amazing teacher and he encouraged me to go into environmental law (I was planning to become a forest ranger).  Bo Abrams became my mentor and good friend, and when he left Wayne State a decade later, I followed in his footsteps in teaching here.  A few years ago Bo and the other casebook co-authors invited me to join them in writing the new edition, and I’m grateful for the opportunity to work with some of the leading academics and practitioners in the field on this rewarding project.

ABA Eastern Water Resources Conference in Orlando, Florida

I’m in sunny and hot Orlando, Florida today for the American Bar Association’s biennial Eastern Water Resources Conference.  The theme is “Surplus and Scarcity: Adapting to Hydrologic Disruption in the East” and as always, there is a fantastic line-up of speakers and topics discussing state water planning and regulation, water economics, and infrastructure.  I’m moderating a panel on the water-energy nexus, and my colleague Nick Schroeck is speaking on the interstate compacts panel, discussing the water quantity-quality connection in the Great Lakes Compact.  Here’s the official conference blurb:

In this decade, catastrophic floods have devastated the Northeast and a prolonged drought has afflicted the South. We see deepening conflicts over interstate water allocations and limited reservoir storage, while energy needs place new demands on the East’s freshwater resources. Although more sophisticated tools are available for measuring and predicting hydrologic conditions, interpreting and assigning weight to the analytical results is challenging and more contentious than ever. With climate change and hydrologic disruption adding layers of complexity to all aspects of water resources management, how is water law guiding crucial decisions and how is it evolving? Join your colleagues and some of the nation’s leading experts in an exploration of how the legal landscape is adapting to a changing water environment in the East.

And with the conference in Orlando, I've brought the wife and kids and we're taking a family trip to Disney World.  When in Rome....

SEC issues interpretive guidance regarding disclosure of climate change risk

This guest post on the SEC’s new interpretive guidance on disclosure of climate change risk is by Eric Jamison.  This topic has not been on the radar for many people involved in water policy, but it is an important new legal development for many water-related businesses, including those involved in water infrastructure and delivery, energy production, and wastewater treatment. 

Eric is a second year law student at Wayne State and has a background in business management.  He has worked extensively on all aspects of energy law and emerging climate change law, with a focus on opportunities for business and economic development at the state and local levels.  Eric played a key role in developing the proposed Property Assessed Clean Energy (PACE) Program for Michigan, which would give homeowners the funds to invest in renewable energy and energy efficiency projects.  Eric recently wrote a national article on the new SEC guidance on disclosure of climate change risk, and was kind enough to write a short summary here. 

On February 8, 2010 the U.S. Securities and Exchange Commission (“SEC”) published interpretative guidance in the Federal Registrar regarding the disclosure of corporate climate change risk.  As interpretative guidance on existing disclosure rules, the guidance becomes immediately effective upon publication in the Federal Register which may impose disclosure obligations for companies filing their 10-K forms for the year ending 2009.

The guidance is not intended to create new legal requirements, but to clarify the disclosure requirements under the existing reporting infrastructure.  There has been political backlash by some Republican Senators claiming that the SEC should focus on the core mission of protecting investors and maintaining fair markets instead of getting involved with climate change.  In addition, 21 Republican Senators are claiming that the guidance is essentially a new rule and thus should be subject to the formal rule making process under the Administrative Procedures Act. 

The interpretative guidance identified some areas that may trigger disclosure obligations:

• The impact of legislation and regulation - When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material. In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.
• Impact of international accords - A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
• Indirect consequences of regulation or business trends - Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies. For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.
• Physical impacts of climate change - Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

The potential triggers outlined by the SEC include very broad and ambiguous requirements.  The amount of pending federal, regional, state and even international regulatory and legislative action is enormous.  The political debates continue over how to best address the challenges of climate change.  Adding to the complexity of the problem is the lack of clear federal action; many regional, state and even local programs have emerged to address emissions regulation, green building codes and disclosure of energy use in real estate transactional matters.  The impact of legislation on business is a complex issue encompassing many layers of analysis based on operations under different regulatory schemes, the reach of the supply chain and a myriad of pending legislation from Congress, agency actions and executive branch efforts. 

Businesses may be better equipped to handle the indirect consequences. Sustainability initiatives have been at the forefront for many businesses for a number or years and during tight economic times businesses naturally look for ways to trim costs and operate more efficiently.  Innovative businesses are accustomed to dealing with market uncertainty related to other market drivers, thus assimilating the risks from the climate should be within the ambit of corporations abilities.

The physical effects of climate change present special challenges to businesses.  The best scientists in the world have struggled with forecasting the effects of climate change.  It leaves corporations in a precarious position to try to evaluate and disclose potential impacts of climate change on their business.  For many it is clear that the climate is changing, but the impacts of the change are multifaceted and result in non-linear changes.

In addition to the above mentioned challenges, many corporations participate in voluntary carbon reporting programs, which may be broader or narrower than the scope of the SEC disclosure obligations.  Thus corporations must be cognizant of the voluntary climate related disclosures they make to ensure that they are uniform so as to not subject the company to potential liability for disclosure omissions or misstatements. 

Despite the challenges posed by the new guidance, it moves the market towards transparency.  One of the purposes of the disclosure rules is to facilitate investor understanding of the risks faced by corporations.  Securities regulations require the disclosure of material information or information that a reasonable investor would find important.  In light of the numerous initiatives related to climate change, it is implausible to think that investors of companies with significant impacts on the environment would find the disclosure of climate change related information immaterial.  Major energy companies are facing fierce opposition from public interest groups for coal plant permitting, plaintiffs groups have successfully brought litigation regarding climate change liability, and emissions regulation is emerging from numerous sources.  A reasonable investor may find much of this information to be material as they consider their investment strategy. 

Putting aside the controversies regarding climate change, there has been significant activity from the public and private sector suggesting that corporations need to examine their operations and business model to reduce their environmental risks and liabilities.  From a pragmatic standpoint emissions and resources cost corporations money, and by measuring and reporting such activities corporations will become acutely aware of their relative costs.  Knowledge of costs will spur market innovation to reduce the use of resources and find ways to cut emissions because of the cost and uncertainty related to them.

Nick Schroeck takes the helm as Executive Director of the Great Lakes Environmental Law Center

The Great Lakes Environmental Law Center has named Nick Schroeck as its new Executive Director.  The Great Lakes Environmental Law Center is the leading public interest environmental law organization in Michigan.  It was founded in 2008 to protect the world’s greatest freshwater resource and the communities that depend upon it.  I had the honor of serving as the inaugural Executive Director on a volunteer basis, and am thrilled to be turning the reins over to Nick, who now takes over as the organization’s first fulltime Executive Director.

Nick is a top-notch environmental lawyer and brings considerable experience in nonprofit management and Great Lakes policy.  He has previously worked with the National Wildlife Federation’s Great Lakes office and served as the Sea Grant Fellow with the Great Lakes Commission.  Nick’s legal expertise ranges from water and wetlands protection to land use and transportation reform.  Nick serves as an adjunct clinical professor at Wayne State University Law School, where he teaches the Environmental Law Clinic (operated in partnership with the Great Lakes Environmental Law Center).  Nick is also a good friend and former student of mine – he was in my first environmental law and water law classes at Wayne State, and it’s been wonderful to see his career develop and watch his many successes in environmental protection.

When we started the Great Lakes Environmental Law Center two years ago, our goal was to create an organization that would provide exceptional legal advocacy resources to Michigan citizens, organizations, and government leaders.  With a dedicated board of attorneys and environmental experts, chaired by Kathryn Loomis, and the generous support of the Erb Family Foundation, The Joyce Foundation, Wayne State University Law School, and individual donors, the organization has quickly grown from a few volunteers to become the leading public interest environmental law organization in the state.  The Great Lakes Environmental Law Center was also founded on the idea that law students can and must play a significant role in shaping the future of environmental law, and I am especially proud of all of the fantastic work our students have done.  Most importantly, the Great Lakes Environmental Law Center has already had many successes and victories in Great Lakes water protection, clean energy, and community health.  Check out the Great Lakes Environmental Law Center’s current projects and the press release on Nick Schroeck being named Executive Director for more details.  And huge congrats Nick, we’re lucky to have you.

Update: Great press coverage on Nick and the Great Lakes Environmental Law Center in this week's Metro Times and Detroit Legal News.  And Gary Wilson has nice coverage at the Great Lakes Town Hall.  Gary raises a point that I should have made clear as well - I will continue to be involved with the Great Lakes Environmental Law Center and will be putting even more time into this Great Lakes Law blog.  Thanks for reading.

Climate change, water, and adaptive law symposium in Houston

The Environmental & Energy Law & Policy Journal and the University of Houston Law Center are hosting a symposium later this week -Climate Change, Water, and Adaptive Law.  The topic is timely and critically important, as climate change is certain to put new stresses on water resources and demands innovative adaptive management policy reforms.

The symposium has a great line up, including Dan Tarlock (Chicago-Kent), Robin Kundis Craig  (Florida State), Elizabeth Burleson (South Dakota), Amy Hardberger (Environmental Defense Fund), and Tony Arnold (Louisville), who helped organize the symposium as a visiting professor at Houston.  For more details, see the symposium brochure.

I’ll be speaking in the morning session on interstate water compacts and climate change adaptation, presenting a draft paper that analyzes every major interstate water compact for its adaptability to new climate change stresses.  Here’s the abstract:

Over ninety-five percent of the available surface freshwater resources in the United States are interstate in nature and governed by interstate water compacts.  These interstate compacts vary tremendously in how they allocate and manage interstate waters.  Until recently, the water resources governed by interstate compacts have been relatively stable and unaffected by drastic changes in long-term weather patterns.  However, within the next few decades North America is expected to experience increased regional variability in precipitation and susceptibility to drought.  This article first looks at these expected changes on a macro and regional level to evaluate the increased stress on water resources that is expected to arise in some watershed.  Interstate compacts may be the most important legal consideration in assessing water supply risks from climate change, and this article provides a critical evaluation of every interstate water compact: how it works, the resources it governs, and the rights and responsibilities it assigns to the party states.  The article then assesses the relative risk and legal uncertainty resulting from climate change for interstate water resources subject to interstate compacts.

A preliminary draft of the paper is available here.  The paper will be finalized over the summer and published in the Environmental & Energy Law & Policy Journal.  Comments are always welcome.

Ninth Annual Great Lakes Water Conference at University of Toledo College of Law

Since 2001, the University of Toledo College of Law has hosted an annual Great Lakes Water Conference that brings together leading academics, policy makers, and legal practitioners to explore the range of legal issues facing the Great Lakes.  I make the trip down to Toledo almost every year for the conference, as it has become a reliably useful and productive forum to debate current issues and exchange cutting-edge ideas.  Professor Ken Kilbert has continued to develop the program every year, and this year’s conference on November 13 has a great lineup of topics and speakers.

Congressman Bart Stupak of Michigan (the leading critic of the Great Lake compact in Congress last year) and Cam Davis, the EPA’s point person on Great Lakes restoration, are the headlining keynote speakers.  Other panels and speakers will discuss Great Lakes restoration and implementing the Great Lakes compact.  I’m moderating a panel on the reach of the Clean Water Act, focusing on recent developments in wetlands jurisdiction and protection, regulation of ballast water discharges, and water transfers.  For the full agenda and registration information, see the conference brochure. 

Property Assessed Clean Energy - A Bright Spot in Michigan’s Economic and Environmental Future

The following guest post is by Eric Jamison, a law student at Wayne State University Law School who is working with the Great Lakes Environmental Law Center to assist local and state government leaders in developing a Property Assessed Clean Energy (PACE) Program for Michigan.  Eric is an “environmental capitalist” preparing to spend his career finding business solutions that are environmentally sustainable and economically viable for clients.  Eric’s legal work is focused on state and local energy policy and the effects of climate change on business.  He has a background in business management and obtained his BS in General Management from Oakland University.

While Michigan is struggling economically and lagging behind some other states in making the transition to a clean energy economy, Jeff Irwin, a Washtenaw County Commissioner, is taking a proactive approach to finding solutions to the state’s economic and environmental challenges.  Commissioner Irwin approached the Great Lakes Environmental Law Center to research and develop enabling legislation for a Property Assessed Clean Energy (PACE) program for Michigan.  The Great Lakes Environmental Law Center, in conjunction with a work team from the City of Ann Arbor, local and national environmental attorneys, and public interest groups, has drafted proposed enabling legislation that will authorize PACE programs.  The proposed legislation is modeled after similar program in other states, though additional input from stakeholders familiar with local government bonding in Michigan would be useful as the legislation moves forward.  The legislation is being prepared to be presented to the Michigan House of Representatives and Senate for consideration this fall. 

In a matter of just over a year, Property Assessed Clean Energy programs and their progeny have spread across the United States with 15 states passing enabling legislation and many others debating similar bills.  California and Colorado started the trend in 2008 with AB 811 and HB 1350, respectively.   (For more information about PACE programs nationally, see the PACE Now website.)

The enabling legislation expands traditional uses of land secured financing by authorizing local governments to sell revenue bonds to raise capital; the capital is loaned to consenting homeowners within the local government’s jurisdiction to purchase renewable energy systems or to make energy efficiency upgrades to their home or business.  Through a special assessment attached to the property, the amount voluntarily borrowed is repaid over a period of years on the property tax bill and transfers with the property in the event of a sale. 

PACE programs facilitate adoption of renewable energy technology and energy efficiency improvements by overcoming two significant barriers to entry: (1) the up-front capital; and (2) the payback period.  Upfront capital costs have always served as a barrier to entry.  With the tight credit market, property owners often cannot get the loans to pay the relatively high costs of a renewable energy system or energy efficiency upgrades.  PACE programs allow property owners to voluntarily borrow money from local governments to pay for such upgrades without negatively impacting their credit.  The payback period needed to make renewable energy and energy efficiency upgrades economically attractive has often been outside the reach of traditional loan programs.  Traditional home equity loans are limited to five to ten years, which don’t allow the increased payment to be offset by the energy savings.  Depending on the size of the loan, the PACE payments can be made for a period up to twenty years which allows the annual energy savings to exceed the cost. 

In addition, many people are hesitant to make significant renewable energy and energy efficiency investments in their property because of the likelihood of selling the property before the cost savings are realized.  PACE programs operate like traditional land secured financing which allows the special assessment to remain with the property in the event of a sale.  With the expansion of land secured financing to include PACE programs, two significant barriers to wide spread market adoption have been removed. 

States have used land secured financing for over a hundred years to fund improvement projects such as sidewalks, water works, and parks that benefit the public.  With the awareness of the damage that greenhouse gases cause to humans and the environment, the definition of what constitutes a public benefit naturally expands to include projects that reduce greenhouse gas emissions.  Most states that have passed PACE legislation have included specific statutory language to expand the definition of public benefit to include the adoption of renewable energy and energy efficiency improvements.  

As the state and country transition to a low carbon economy, PACE programs are an important step in the right direction.  Buildings account for almost 40 percent of greenhouse gas emissions in the United States.  PACE programs encourage existing building owners to invest in improvements that will reduce the buildings energy consumption.  In addition, most states (including Michigan) now have Renewable Portfolio Standards requiring the production of certain percentages of energy from renewable sources by certain target dates.  PACE programs may provide a potential aggregation point for states with these policies.

In uncertain economic times PACE programs offer a low risk, win-win economic development tool.  Property owners are justifiable hesitant to invest in their properties; PACE programs mitigate much of the risk through annual energy savings and because the investment is attached to the property and not the property owner.  If the PACE legislation is passed in Michigan it will drive economic development.  Manufacturers will need to produce the supplies; local contractors will be hired to do installations.  In 2007, $24 billion left the state of Michigan to pay for energy resources – coal, oil, natural gas, and uranium – that cannot be produced locally.   Even a modest one percent increase in energy efficiency would keep $240 million in the Michigan economy annually, create thousands of jobs for Michigan workers and help our residents and businesses save money on energy.

Wayne Law launches new Environmental Law Clinic in partnership with the Great Lakes Environmental Law Center

Wayne State University Law School is launching a new Environmental Law Clinic in partnership with the Great Lakes Environmental Law Center.  Students started work this summer, and the clinic will be open for enrollment beginning this fall.  I’ll be co-teaching the clinic with Nick Schroeck, a former fellow with the Great Lakes Commission who currently works with the National Wildlife Federation and is a Great Lakes Environmental Law Center board member.  Nick is also my former student and recently taught a course on U.S.-Canadian environmental policy at Wayne State.  I’m personally grateful that Wayne State University and the Law School have supported this new initiative and have brought Nick on board to help.

The Environmental Law Clinic will teach students the skills and strategies needed to affect environmental policy in state and federal government.  Students will participate in the lawmaking process by preparing policy papers and formal legislative testimony, commenting on rulemaking and permit decisions, and engaging in judicial review and enforcement litigation. In all clinical projects, students will work with the Great Lakes Environmental Law Center and may represent other community organizations and public interest groups.

The Environmental Law Clinic will prepare students for their future legal and environmental advocacy work while serving a huge unmet need in Michigan.  The Environmental Law Clinic will be a resource for citizens, community organizations, and government leaders working towards environmental protection.  It will give Wayne Law students the opportunity to play a critical role in solving our region's most pressing environmental problems.  Priorities and focus areas will be protecting the Great Lakes and freshwater, transitioning to clean energy and curbing global warming emissions, assisting communities in achieving environmental justice, and ensuring good public process and openness in government decisions.

Judging from the media coverage, there is a great deal of excitement about the new Environmental Law Clinic.  The Detroit Legal News ran a great front-page story on the Environmental Law Clinic last week.  Model D, an exciting weekly e-zine, also had nice coverage.  Most importantly, the students are already making a difference by helping citizens and public interest organizations protect their communities and the Great Lakes.