Topic: Recent Publications

Recent Publication

Robert “Bo” Abrams & Alexis Clark, Weather Modification Past and Prologue, 37 Nat. Res. & Env’t 21 (2022)

Who owns the clouds? Although the United States began experimenting with weather modification techniques to enhance precipitation as early as the 1940s,[1] the topic has received limited attention from regulatory bodies.[2] “Weather modification” is “the deliberate and mindful effort” to control the weather for societal purposes.[3] For example, the U.S. uses weather modification techniques to “enhance precipitation, protect crops from hail damage, clear fog at airports, . . . reduce air pollution[,]” and even potentially alter the trajectory of major hurricanes.[4]

As climate change continues to strain water supplies and increase the severity of drought and fire seasons,[5] precipitation enhancement may prove to be a vital part of water management and habitat rehabilitation.[6] In the recent article, Weather Modification Past and Prologue, Robert “Bo” Abrams and Alexis Clark analyze the history of weather modification in the U.S. and summarize scientific and legal barriers to the widespread use of this tool to combat climate change.[7] Abrams and Clark ultimately call for federal support of weather modification activities, particularly a precipitation enhancement technique called “cloud seeding.”[8]

The Science Behind Cloud Seeding & Historic Use of Precipitation Enhancement

“Cloud seeding” is a technique used to “promot[e] the condensation of water vapor in clouds around a nucleating agent—or seed—into either ice crystals” or water droplets, “which then become heavy enough to fall to the ground as precipitation.”[9] The most common “seed” is silver iodine, which is released into clouds using drones, special aircraft, or ground generators.[10] This method of weather modification was discovered in the 1940s by researchers for General Electric and the Office of Naval Research while attempting to deice aircraft wings.[11]

Water-stressed states—including Texas—have used cloud seeding since the 1950s.[12] Atmospheric modeling was then in its infancy, which limited scientists’ ability to prove the technique’s effectiveness.[13] This resulted in a “lack of a coordinated national effort to link understanding of atmospheric science to the processes behind weather modification.”[14] Abrams and Clark admitted that—even today—the scientific community is divided in its support for cloud-seeding technology, with some questioning its efficacy.[15] One major concern is that drought conditions can be so severe that “no amount of seeding can force water from the sky.”[16]

Still, some seeding programs have shown potential.[17] For example, studies show that existing seeding programs in the Colorado River Basin could be expanded to produce a 10–15% increase in snowpack.[18] For context, this would generate an additional 1 million acre-feet of water per year, or “enough water to supply between 1 and 3.5 million households each year.”[19] Cloud seeding is also more cost-effective than other methods of developing water.[20] For example, at $5–$30 per acre-foot, seeding is up to 100 times cheaper than desalination, which can cost as much as $3,000 per acre-foot.[21] Given its cost-efficiency and potential for success, Abrams and Clark argue that “[t]he addition of a cloud-seeding program to a water management portfolio seems like a no-brainer.”[22]

Early Legal Framework

Although federal agencies have been assigned to research and evaluate weather modification activities since the 1950s, the federal government’s approach has been relatively hands-off.[23] It was not until several decades later that Congress pursued “concrete federal action on weather modification” through the Weather Modification Policy Act of 1976 (WMPA).[24] The WMPA mandated that the Secretary of Commerce create a national policy on weather modification and assess the “economic, social, environmental, and legal impact . . . of a national program for managing weather modification.”[25] The WMPA also sought to: (1) “develop model codes and agreements to ensure peaceful regulation of domestic and international weather modification activities”; (2) “set minimum reporting standards for weather modifiers”; (3) provide additional funding for research and development; and (4) “creat[e] a congressionally appointed advisory board to provide further recommendations.”[26]

In 1978, the advisory board recommended that the federal government strengthen regulation of weather modification activities beyond mandatory requirements under the National Environmental Policy Act and dedicate funding to assess the long-term effects of weather modification.[27] The board recommended mandatory reporting and evaluation of silver iodide concentrations over time, changes in streamflow, migration of ecosystems due to changed annual precipitation patterns, changes in water quality, and invasive species.[28] Finally, the report encouraged Congress to immediately promulgate a federal licensing program, operating standards for weather modifiers, and an “express affirmation of liability for weather modifications under the Federal Tort Claims Act.”[29]

Current Legal Status of Weather Modification & Use of Cloud Seeding

Unfortunately, the federal government has not passed new legislation on weather modification since the 1970s, and the WMPA has largely laid dormant.[30] Abrams and Clark theorize that “the overselling of the potential impact and scope of weather modification in the 1950s and 1960s undercut interest in continued federal funding for research and development.”[31] They also note that the “militarization” of weather by the U.S. during the Vietnam War negatively affected public perception of weather modification and stagnated research and policy.[32]

Even so, a handful of states and private parties have consistently funded small-scale precipitation enhancement projects.[33] While eighteen states have current weather modification laws, half of these states only allow weather modification activities during emergencies or in a limited capacity.[34] All state laws on weather modification include mandatory reporting requirements, and most also include licensing, permitting, and public notice requirements.[35] The “teeth” behind weather modification laws vary from state to state, resulting in “an inconsistent patchwork of regulations for activities that have potential transboundary effects.”[36]

Abrams and Clark note that cloud-seeding activities also trigger lawsuits over liability damages and water rights—essentially litigating who owns the clouds.[37] Plaintiffs seeking injunctions against weather modifiers typically do not prevail in court, either because damages would adequately compensate them for any injuries, or “[t]he current lack of replicable and predictable scientific results for activities leaves the plaintiff without an essential element to their cause of action,” especially in states where strict liability claims are prohibited.[38]

In seven states, water from cloud-seeding activities is treated like natural precipitation allocated by the state’s prior appropriation laws.[39] Only four cases have addressed who owns the clouds.[40] The New York Supreme Court held that country club owners could not enjoin nearby weather modification activities that had the potential to flood the country club.[41] The country club owners’ claim had no factual basis to prove an injury, and there was no evidence that the potential injury would outweigh the possible public benefits of weather modification.[42] However, in Texas, ranchers successfully obtained an injunction against a weather modification organization’s performance of hail suppression activities, which affected the plaintiff’s land.[43] In another Texas case, the Texas Court of Civil Appeals affirmed that a landowner was entitled to protection from the impact of hail suppression activities.[44] A Pennsylvania district court similarly held that precipitation is “common property held by all,” but the right to precipitation that falls on your land is “not unqualified” and “can be regulated by the state.”[45]

The Future of Weather Modification

Abrams and Clark ultimately conclude that weather modification activities such as cloud seeding are a “vital part of the toolbox for navigating climate change and avoiding past mistakes.”[46] Echoing the recommendation of the advisory board in the late 1970s, Abrams and Clark call for a more hands-on approach from the federal government, including: “(1) recordkeeping requirements, reporting, and public transparency; (2) establishment of federal minima, such as environmental assessment and adoption of industry standards; and (3) adequate funding for research and development.”[47]

This article provides a helpful analysis of the potential of weather modification to combat the effects of climate change. In light of southwest Texas’ worst drought in at least 1,200 years,[48] the topic is particularly timely. Although the article doesn’t suggest a particular blueprint for a new regulatory framework, it re-sparks the conversation over who owns the clouds.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Lauren Alexander is a 3L from Emory, Texas. Lauren joined TELJ during her 2L year and currently serves on the TELJ Board as an Article and Notes Editor. Lauren is excited to start a post-graduate position at Perales, Allmon & Ice, PC in Austin, where she will represent landowners, nonprofits, and other protestants in environmental matters.

Recent Publications

Kelsey Peden’s “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws”

Introduction

Shark and ray populations—known together with skates as “elasmobranchs”—have been on the decline over the past fifty years, subject both to high levels of intentional fishing and high levels of accidental catch.^[1] In January 2021, scientists from around the globe noted that some shark and ray populations were in danger of extinction, and therefore deserved strong legal protection from the international community.^[2] In her article “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws,” Kelsey Peden attempts to answer the question of how to achieve the necessary protection.[3] While noting the benefits of current international conservation and trade laws, she ultimately finds the existing international framework lacking.[4] Instead, Peden argues that the most promising avenue is for countries that she considers conservation-friendly, like the United States, to design their domestic trade laws in a manner that promotes sustainable seafood harvesting.^[5]

International and Regional Conservation Law

Peden paints a disappointing picture of the international conservation scheme for oceanic wildlife. While acknowledging that the United Nations Convention on the Law of the Seas (UNCLOS) and subordinate agreements include language that protects “highly migratory species,” which includes many elasmobranchs,  this language is broad and lacks specific goals or terms.^[6] Additionally, these agreements are largely voluntary and without specific enforcement provisions.^[7] Universal conservation agreements are ultimately the wrong avenue for shark and ray preservation, as continued unsustainable fishing practices have demonstrated.^[8]

Regional agreements and conventions like the Regional Fish Management Organizations (RFMOs) may be a more promising path forward. Promoted by UNCLOS and related agreements,^[9] these arrangements allow for intergovernmental cooperation on a more local level.^[10] However, much like the broader UNCLOS, these agreements face problems from nations that value profit over conservation.^[11] The inadequate measures taken to protect bluefin tuna at the regional level, for example, demonstrate that RFMOs are susceptible to recalcitrant member states that wish to maximize the profitability of marine life at the expense of sustainability efforts.^[12]

International Trade Law

Peden next turns to international trade law as a more productive avenue for shark and ray preservation.^[13] At the center of these sustainable international trade regulations is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).^[14] CITES works largely by classifying species into appendix groups, adapting the convention into national laws, and providing for enforcement.^[15] The level of protection afforded to species varies depending on which appendix they are placed in. Appendix I offers the most protection, with trade being generally prohibited outside of exceptional circumstances.^[16] Appendix II, the most populous appendix with 34,419 species listed, maintains less strict but still tight regulations on trade.^[17] Finally, Appendix III requires sellers to obtain a certification of origin to be eligible for trade.^[18] In addition to these specific guidelines, CITES also has enforcement provisions, including sanctions and the suspension of trade.^[19] Peden specifically looks at language in Article XIV of CITES, which allows nations to develop “stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and II, or the complete prohibition thereof.”^[20] Through this language, Peden sees in CITES a way for party nations to engage in unilateral enforcement of the convention, providing the enforcement mechanism that is critically lacking in other conservation agreements such as UNCLOS and the RFMOs.^[21]

Unfortunately for sharks and rays, the author does not see CITES as a cure-all for elasmobranch protection. She notes that the first shark was not introduced to a CITES Appendix until 2003.^[22] While there are now forty-six shark and ray species listed in the CITES Appendices, the author notes the comparative paucity next to the nearly 1000 shark and ray species currently alive.^[23] Ultimately, she notes that this comes down to the same profit-motivation driving countries to block and obstruct other conservation efforts.^[24] While the author finds that “CITES’ emphasis on trade and preventing profit-based interests from harming endangered species is the most direct and effective approach to international ocean management,”^[25] she ultimately looks to other sources of law to supplement that regime and hopefully improve elasmobranch conservation.^[26]

Domestic Conservation Law

Lastly, turning to domestic law, the author sees significant promise for shark and ray conservation.  She notes that the U.S. has its own suite of fishing sustainability laws.^[27] For example, under the Federal Shark Conservation Act, shark finning has been largely banned within U.S. jurisdictions.^[28] The use of driftnets—the type of net most associated with the accidental catch of elasmobranchs—is similarly banned throughout most of the U.S.^[29] While these stricter laws are beneficial, the author notes that U.S. international trade law still has gaps that allow for the import of elasmobranchs with fewer protections than those provided by domestic law.^[30] Peden believes that filling these gaps in import restrictions can support shark and ray sustainability.[31]

Peden finds the use of domestic import restrictions particularly worthwhile since it leverages the U.S.’ outsized market power.^[32] As the author notes, the U.S. imported more than $20 million worth of seafood in 2016;^[33] by using domestic import controls, Peden believes that the U.S. can promote shark and ray preservation on a global scale. The author notes that the U.S. has already enacted promising import controls for some species under several pieces of legislation, including the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA).^[34] She finds the MMPA’s framework, which requires countries exporting fish to America to have equally strong marine mammal protections as the U.S., particularly interesting.^[35] Promisingly, some states have contributed to the conservation effort, with several including Texas, California, and New York having outright bans on the sale and possession of shark fins.^[36] Peden concludes that these import restrictions should be expanded to cover elasmobranchs and suggests several options: banning the import of elasmobranchs,[37] improving by-catch import regulations and labeling requirements,^[38] and increased supply chain monitoring.^[39]

The first path the author explores is banning the import of elasmobranchs, which she calls the “most simple and direct method of promoting elasmobranch population growth.”^[40] Peden notes that the U.S. was the unintentional middleman to between 650 and 772 tons of shark fin exports from 2010–2017, “accounting for as many as 1.29 million sharks.”^[41] The Shark Fin Sales Elimination Act, which would ban shark fin imports on a national level, represents a positive first step but has yet to be passed.^[42] Recognizing the existing double standard that shark finning is illegal domestically but importing those same fins is legal, the author promotes a dual-track solution: First, to pass a federal ban on elasmobranch import; second, to adopt a federal reciprocity requirement for elasmobranch imports similar to the protection marine mammals receive under the MMPA.^[43]

Next, the author explores improving by-catch regulations and labeling requirements. Identifying by-catch as one of the main sources of elasmobranch population decline, Peden examines several techniques that could be used to reduce by-catch.^[44] Calling for U.S. import laws to prioritize existing practices and technologies, the author recommends establishing an MMPA-like regime that mimics its mandate to ban seafood “caught with commercial fishing technology which results in the incidental kill or incidental serious injury” of protected animals in excess of U.S. standards.^[45] Additionally, the author recommends establishing a labeling regime similar to the one Congress enacted for dolphins in the Dolphin Consumer Protection Act.^[46]  While acknowledging that these kinds of labeling acts are unlikely to prevent the by-catch problem entirely, Peden contends that these efforts would be a worthwhile first step towards reducing the accidental death of sharks and rays.^[47]

Lastly, the author recommends imposing traceability requirements on imports to promote elasmobranch population growth.^[48] Currently, there is no way to know where most shark and ray imports are coming from or what methods were used to catch them.^[49] While some sharks and rays covered by CITES and the ESA do have traceability requirements, this covers only a minor portion of shark and ray species.^[50] Peden notes that setting up such a traceability system is critical to the success of any other import regulation.^[51] While the author does not offer any specifics as to what such a traceability system would look like, she notes that traceability systems exist for several other species, including those covered by the MMPA, and that there is no reason they could not also be implemented for more elasmobranch species.^[52]

Going Forward

The author’s proposed solutions offer a hopeful path for improving elasmobranch protection. We live in an era of rising international tensions, where international cooperation seems increasingly difficult.^[53] In this context, taking advantage of the market power of the U.S. seafood industry to target both intentional and unintentional killings of elasmobranchs is sensible.^[54] However, the rise in global international deadlock has been mirrored by similar partisan tensions in the United States.^[55] It can be a tall order to ask both houses of Congress and the President to agree on legislation.^[56] Even regulatory action runs the risk of changing with administrations.^[57] For all of its strengths, Peden’s article does not grapple with these questions.

Regardless, Peden offers a worthwhile path toward preserving sharks and rays. As she notes, international agreements have not stopped their population decline. Domestic law, and particularly import restrictions, presents a worthwhile avenue for the U.S. to promote shark and ray preservation abroad. By highlighting this, Peden’s article is a valuable addition to conservation efforts.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Trevor Mathes is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Trevor joined TELJ in the Fall of 2020 and serves as a Staff Editor. He was born in Abilene, Texas and studied History at William & Mary.

Recent Publication

Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System, 54 Harv. C.R.-C.L. L. Rev. 1 (2019).

At the core of American legal efforts to advance notions of equity and justice within the environmental sphere lies the ‘environmental justice movement’. The environmental justice movement has evolved alongside the landmark American environmental statutes.[1] Initially a product of legal momentum in the 1960s, the major environmental statutes aspired to new balances between continued economic prosperity and the protection of the environment.[2] The National Environmental Policy Act (NEPA) and the innovative media-based statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA), were passed relatively swiftly and cohesively in this same early period.[3] 

            As scholars have detailed, initial aspirations to design this balance sought to remedy major equity concerns, including about the material distribution of environmental benefits and burdens.[4] These initial equity aspirations were powerfully informed by lenses of race and class.[5] Yet, these initial equity aspirations were, “ultimately, jettisoned”.[6] Instead, with apparent evidence of diminishing inequality and a growing interest in substantially deregulating major economic sectors, many equity dimensions were discounted.[7] 

            In response to these cuts and to the increasing criticism of arguably inequitably distributed environmental burdens, the US environmental justice movement has grown more prominent. Despite initially lacking major political power and a presence within elite circles, the environmental justice movement continues to advocate for the inclusion of policies to remedy what some activists see as concerning government endorsement of environmental oppression.[8] 

Thus, especially within energy infrastructure planning and the regulation of hazardous materials, the environmental justice movement remains a primary legal, political, and policy framework by which efforts to address environmental inequity are framed.[9] The movement has accordingly found some success—especially in liberal political efforts—incorporating equity concerns within new and existing regulations.[10]

            However, just as the movement persists, as does its struggle, and today parallel literature has developed on ‘energy justice’. The passage of major legal evolutions within environmental, energy, and, more recently, climate law, remains a deeply contested political atmosphere.[11] Increasingly divisive interest groups, political factions, and long-standing economic entrenchment threaten ‘advancement’ by any one movement.[12] Parties to disagreements are increasingly aware of energy law’s sweeping potential to determine economic goals, infrastructure policies, and the flow of financial benefits. This sweeping potential makes energy law-making deeply contested.

            It is in the context that a 2019 publication by Shalanda H. Baker—currently the deputy Director for Energy Justice and Secretary’s Advisor on Equity in the United States Department of Energy but, at the time of publication, Professor of Law, Public Policy and Urban Affairs at Northeastern University School of Law—contributes a theoretical perspective worth noting in the growing ‘energy justice’ literature. Baker’s central thesis revolves around a perspective of ‘anti-resilience’. This perspective develops from a creative argument. 

First, Baker notes that concepts of resilience are increasingly incorporated into energy transition and climate change law-making efforts and frameworks.[13] She traces the history of this incorporation, stemming from concepts of ecosystem resilience to external forces, and evolving into increasingly common sociological and legal formulations of resilience.[14] In these sociological and legal formulations, resilience becomes a “normative good” to be “sought after,” something which reflects a system’s, a community’s, or an infrastructure’s capacity to weather adverse forces and “bounce back” to its prior condition.[15] 

Yet, Baker argues, these subtle invocations of resilience concepts—growing within energy transition and climate change law-making—may inadvertently lead policymakers to “obfuscate” important questions regarding the state of energy-based inequity today.[16] Baker argues that when policymakers uncritically incorporate concepts of resilience as a normative good within legal strategies, they may fail to interrogate subtle dynamics of oppression in existing governance models.[17] In this view, concepts of resilience, while importantly reinforcing a need for strength and recovery potential in vulnerable components of society and infrastructure, nevertheless incorporate a certain acceptance of an arguably inequitable status quo. This status quo, in the energy justice movement’s view, does not exhibit an equitable distribution of benefits and burdens flowing from the ownership of energy resources.[18] In Baker’s view, then, resilience framing deserves greater scrutiny in contemporary law-making efforts. 

One of the most unique elements of Baker’s analysis is its invocation of a historical analysis recently developed within the ‘energy democracy’ movement.[19] In this historical perspective, while today most literature on energy transitions centers around contemporary transitions from fossil fuels to renewable energies, the energy democracy movement views today’s circumstances as one of a series of major industrial transitions.[20] Instead, efforts today to address climate change and manage energy transitions should, in this view, be significantly informed with the lessons of a precursor industrial energy transition, from the Transatlantic Slave Trade to industrialised fossil fuels.[21] 

In this historical reanalysis, the Transatlantic Slave Trade, especially as evolved in American plantation colonialism, saw the first industrial-scale transformations of matter—the “essence of energy”[22]—through the dominated extraction of labor from colored bodies. Using slave labor to transform land, slave economies facilitated race-based governance structures and the colonization of the American continent, thereby consolidating surplus wealth at unprecedented scales.[23] Yet, this view argues, when fossil fuel engineering began to displace slave labor, underlying race-based systems of governance were retained, themselves “resilient” to this initial energy transition.[24] Scholars such as Myles Lennon have argued that, in this way, “the colonial apparatus transformed energy—the ability to change matter—into a commoditized form that made certain lives not matter.”[25]

The central impetus of this perspective on energy justice, then, is to prevent the continuance today of allegedly oppression-based governance and economic models through the upcoming energy transitions to lower-carbon economies and energy infrastructure. In Baker’s view, energy policy represents a legal mechanism with potential to interrogate this alleged underlying dynamic.[26] Indeed, energy democracy activists treat energy policy as a mechanism for the legal reorganization of economic benefits related to energy-based wealth.[27] Energy democracy thus aspires to link “intersectional activism and the technocratic realm of electricity grids and markets.”[28]  Baker’s ultimate vision would see that communities will regain “some measure of control of the energy and environmental resources around them,” access “economic opportunities outside of the colonizing energy industries within their communities,” and incorporate local renewables “through a community-mediated mechanism that reflects the will of the people impacted by the energy system.”[29]

Through an analysis of state and federal energy policies and proceedings, including net metering policy, community energy policy, and Federal Energy Regulatory Commission proceedings on the role of resilience in the nation’s energy grids, Baker argues that such policies embody under-utilized opportunities to facilitate this transferal of energy-based wealth to under-resourced communities.[30] For Baker, such policies, when focused through a lens of “anti-oppression,” could play a prominent role in assisting communities that she describes as ‘sacrifice zones’, such as her hometown of Port Arthur, Texas, which in her view face disproportionate environmental burdens from fossil fuel infrastructure.[31] Baker views her work as “resisting the obfuscation” of entrenched inequity and “engaging in a politics” of transformation, thus positing a theoretical perspective with dimensions in arguably both a transformative politics and a radical epistemology.[32] 

Yet, Baker’s arguments are susceptible to substantial criticisms that may undermine the insight’s potential durability and effect within energy and climate law-making. In particular, as climate and energy policies remain a deeply contested territory, such “transformative” policies centered around an economic redistribution of energy’s benefits are likely to implicate deep veins of political contest, interest groups dynamics, industry trends, and constitutional matters. On the one hand, the movement’s aspiration for transformation risks asking for nothing less than equality of energy’s benefits across American society, and thus the movement may, for some, ask too much. On the other hand, insofar as the movement dreams of economic and political upward mobility largely while retaining today’s core economic and political structures, the movement may, for some, ask too little. Simultaneously, then, the imaginative nature of Baker’s vision arguably makes it politically unrealistic, while a hesitancy to envision an even more radical future may risk undermining, to some, the movement’s conceptual cohesion. Both criticisms may ultimately undermine the movement’s legitimacy, persuasiveness, and potential to achieve durable legal influence.

This acknowledged, there remains something important that readers can undoubtedly retain from Baker’s rigorous analytical exposition, regardless of whether readers agree with her ultimate positions. The recognition that concepts of resilience are often based in an attachment to an a priori state of affairs—which may be uncritically accepted as normatively good—provides policy makers with an additional encouragement to reflect on the values and assumptions guiding their strategies. In this light, Baker’s work makes a considerable contribution to the energy justice literature because it further attunes energy policy to matters of equity and justice—matters which, from many sides, are increasingly regarded as societally worthwhile. Whether through continued historical reflection, analysis of economic distributions, or novel conceptual policy arguments, the energy justice literature continues to provide a unique and interesting perspective on energy policy-making, especially its energy transition dimensions. 

Finally, possible connections to other parallel movements shaping American society, such as Black Lives Matter and renewables proliferation, may make it such that a vision to ‘democratize energy’ may find a foothold in the legal efforts of activists and technocrats alike. There is a deepening recognition that climate change places great legal pressure as much on administrative and property law as traditional environmental and energy law.[33] In this regard, energy policy’s sweeping potential makes it a possibility that climate-driven energy transition policy “traverses a diversity of hopeful terrain that makes it a better site for transformative politics” after all.[34] 

Like many components of energy policy today, though, much will depend on the real decisions made in upcoming years. To what extent Baker’s arguments will be incorporated into upcoming energy policy efforts is, thus, unknowable. Nevertheless, the article’s contribution to energy policy-making literature is rigorously articulated, thoughtfully advanced, and worth considered reflection.

Aaron Ramcharan is a J.D. Candidate, Class of 2022, The University of Texas School of Law and LL.M. Candidate in Global Environment and Climate Change Law, Class of 2022, University of Edinburgh Law School. Aaron joined TELJ in Fall 2020 and serves as Senior Editor. He was born in Edmonton, Alberta, Canada and studied Philosophy at Reed College in Portland, Oregon. After graduation, he will join Baker Botts LLP.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Recent Publications

Review of Noah M. Sachs, Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era

Introduction

In Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era, Noah M. Sachs discusses the seldom-discussed risks posed by toxic chemicals’ release from storage facilities as a result of flooding.^[1] Sachs defines “toxic floodwaters” as the dangerous floodwaters that flow through industrial sites and transport a mixture of contaminants (e.g. toxic chemicals, oil, sewage) to nearby communities.^[2] As floods grow more frequent and severe, as a result of climate change, and rising sea levels become more imminent,^[3] vulnerable communities face increased flooding and exposure to hazardous waste threats.^[4]

Sachs’s article is separated into three sections.^[5] First, Sachs examines toxic floodwaters’ threat. Then, he compares private versus public legal remedies’ suitability to combat the danger of toxic floodwaters and argues that public law is the better approach. Finally, he proposes specific changes to the existing chemical safety regime to better protect against these toxic floodwaters.

Examining Toxic Floodwaters

Sachs first documents some of the unique toxic-floodwaters challenges, which are most effectively studied in the aftermath of hurricanes, when toxic contaminant spread is the most intense and perceptible.^[6] Hurricane Katrina first brought attention to contaminated floodwaters after researchers studied the release of oil and toxic chemicals and their effect on nearby communities.^[7] Sachs also notes the long-term health risks of those Hurricane Harvey affected.^[8] Yet, studying toxic-floodwaters effects is difficult because waters are rarely tested at the high water mark during a flood, when the risk of human exposure is greatest.^[9]

It remains clear, however, that toxic-flooding harms are not borne equally across racial and class lines. The risk that a given facility poses to a community depends on the site’s substances’ volume and toxicity and those substances’ storage conditions.^[10] Communities of color and low-income residents of low-lying areas are the most vulnerable to toxic floodwaters.^[11] This is due in part to a transportation lack, which makes evacuation during a flood less practical.^[12] For the same reason, elderly communities and small children are especially at risk. Children also have a higher proportion of skin surface area to body weight, making them physically vulnerable.^[13]

Private Law Versus Public Law

Sachs then compares private and public legal solutions. Private law, which has been the main mechanism to address contaminant discharge, relies heavily on common law areas such as tort law, where behavior is modified by a facility’s perceived liability risk in the event of a disaster. Sachs argues that, unlike the private mechanisms such as tort liability or the insurance premium costs, public law might provide a more direct incentive to take preventive steps against floodwater dangers.^[14] In his analysis, Sachs draws heavily on factors set out by the economist, Steve Shavell, to support a public law approach.^[15] Sachs notes that toxic floodwaters create a magnitude of harm that exceeds potentially liable firms’ assets and that it is difficult to trace the harm’s source once contaminants mix and leave a facility during a flood.^[16] Furthermore, injured community members may not promptly bring a tort claim, because chemical exposure effects may not manifest for years.^[17] Once community members eventually bring a tort suit, they face the difficulty of proving causation and a facility’s failure to meet a standard of reasonable care in storing chemicals during a destructive flood.^[18] Therefore, Sachs argues, the threat of tort liability is insufficient and unlikely to deter firms from unsafe storage practices.^[19] Sachs examines government regulatory mechanisms and their success in preventing unsafe practices and mitigating vulnerable communities’ chemical exposure resulting from flooding.

Proposed Regulations

Finally, Sachs proposes specific regulatory changes that could help prepare for toxic floodwaters’ inevitable crises.^[20] Sachs advocates a shift from the historical regulatory focus on toxic chemicals’ intentional discharge that reaches consumers and workers to a focus on chemical storage and accidental releases.^[21] For example, current statutes limit what can be discharged, but not where facilities can be sited, which, if regulated, could prevent future toxic floodwaters.^[22] Additionally, toxic floodwaters arise from chemical storage, not just chemical waste. Many otherwise harmless but commercially useful chemicals might be hazardous as chemical waste during a flood.^[23] Therefore, the 1976 Resource Conservation and Recovery Act (RCRA), which regulates only the storage of hazardous waste, is inadequate.^[24]

Sachs argues that, first, policymakers should compile an inventory of the most dangerous chemical storage facilities that are flood-exposed, so that they may be inspected before chemicals are discharged.^[25] Then, he proposes three steps: Establish federal standards that cover non-oil substances and accidental discharges; update requirements for emergency planning and notifying vulnerable communities by, for example, strengthening the 1986 Emergency Planning and Community Right to Know Act (EPCRA); and prohibit new facilities in at-risk areas.^[26]

Conclusion

Sachs’s article raises an issue that requires urgent attention. Not only will climate change increase the frequency of hurricanes and rainfalls generally, but rising sea levels will submerge coastal areas.^[27] Beyond correcting for toxic floodwater disasters that manifested during recent hurricanes, aggressive steps must be taken to prevent the crises on the horizon.

Sachs’s article also overcomes a very common challenge: When existing protocols are clearly inadequate, it can still be difficult to demonstrate that new ones will fill the gap. However, Sachs carefully illustrates our current public law mechanisms’ very clear shortcomings and offers concrete improvements. By creating an inventory of the most dangerous facilities and taking simple but aggressive steps to update our current regulatory regime, we might effectively mitigate some of toxic floodwater dangers that will otherwise be gravely exacerbated by future climate catastrophes.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Jackson R. Bright is a third-year student at The University of Texas School of Law and Staff Editor of the Texas Environmental Law Journal.

Recent Publications

EPA Rule: Navigable Water Protections Rule and Ongoing Litigation

Introduction

The Clean Water Act (CWA) is the primary United States federal law governing water pollution. Under the CWA, the federal government has jurisdiction over all “navigable waters,” which the Act defines as “the waters of the United States, including territorial seas.”^[1] The CWA does not further define navigable waters or the waters of the United States (WOTUS). Instead, a combination of Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers regulations and U.S. Supreme Court decisions have defined and redefined WOTUS, thereby determining what waters fall within CWA federal regulatory jurisdiction.^[2]

The most recent update to the definition of WOTUS came in the EPA’s publication of the Navigable Waters Protection Rule (NWPR), which took effect June 22, 2020, and replaced the 2015 Clean Water Rule (CWR).^[3] The NWPR reduces the scope of the CWA and limits federal jurisdiction to waters that are sufficiently and visibly connected to traditionally navigable waters.^[4] Predictably, the NWPR faces several legal challenges in federal district court. The challenges fall into two main categories. In the first category, which this article broadly labels as those with conservation interests, the plaintiffs are states, environmental groups, and tribes.^[5] These conservation plaintiffs are challenging the NWPR’s interpretation of WOTUS as waters with a physical, surface water connection to traditional navigable waters as a violation of the Administrative Procedure Act (APA) because a majority of the U.S. Supreme Court has already rejected that definition.^[6] In the second category, which this article broadly labels as those with industry interests, the plaintiffs are agricultural groups.^[7] These industry plaintiffs are challenging on the grounds that the CWA specifically regulates navigable waters, which Congress meant to mean waters that are navigable-in-fact, while the NWPR includes bodies of water that are not themselves navigable.^[8] This article provides a brief background of the recent changes to the definition of WOTUS and an overview of the ongoing legal challenges to the NWPR.

Recent History of WOTUS: Rapanos v. U.S., Clean Water Rule, and Navigable Water Protection Rule

In Rapanos v. U.S., the U.S. Supreme Court’s most recent holding on the CWA and WOTUS, the Court issued a four-Justice plurality opinion that the CWA only provided jurisdiction over waters with a continuous surface connection to traditional jurisdictional waters.^[9] Writing for the plurality, Justice Scalia defined WOTUS to mean “relatively permanent, standing, or continuously flowing bodies of water” and specifically excluded intermittent or ephemeral bodies of water resulting from precipitation.^[10] Wetland and other remote waters, Scalia reasoned, were not within federal jurisdiction unless they had “continuous surface connection” to a relatively permanent WOTUS, “making it difficult to tell where the water ends and the wetland begins.”^[11] A mere hydrologic connection to a body of water within federal jurisdiction under the CWA, the plurality held, was insufficient for a water body to fall within federal jurisdiction.

Justice Kennedy, in his concurring opinion, articulated the analysis of the Court’s prior WOTUS holdings and defined a WOTUS as a body of water with a significant nexus to a water that falls within federal jurisdiction.^[12] Because Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” Justice Kennedy reasoned that bodies of water fall within federal jurisdiction under the CWA if they “significantly affect the chemical, physical, and biological integrity of other covered waters.”^[13] According to Justice Kennedy’s significant nexus test, a body of water falls within federal jurisdiction if it has hydrological connection significant enough to affect the water quality of traditional navigable waters.^[14]

Rapanos provides the basis for both the CWR and the NWPR. In the CWR, the EPA formalized Justice Kennedy’s significant nexus test to determine jurisdictional waters under the CWA on a categorical and case-by-case basis.^[15] Per the CWR, “significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of” traditionally navigable waters.^[16] This includes categorical waters, such as wetlands adjacent to other waters and noncontinuous tributaries, and waters not otherwise excluded by the rule on a case-by-case basis.^[17] The NWPR dispenses with the CWR’s implementation of Kennedy’s significant nexus analysis and instead presents a federal jurisdiction over “those waters and wetlands that maintain a significant surface water connection to traditional navigable waters.”^[18]

Challenges to the NWPR

The NWPR was challenged in two federal district court cases on April 27, 2020, six days after the final rule was published.^[19] In the first case, Chesapeake Bay Found. v. Wheeler, plaintiffs with conservation interests challenged the rule on the grounds that its interpretation of WOTUS violated the APA and was too narrow.^[20] Eight similar cases have since been filed in different district courts.^[21] In the second case, New Mexico Cattle Growers’ Association v. EPA, plaintiffs with industry interests challenged the rule on the grounds that its interpretation of WOTUS was too broad, as it provided federal jurisdiction over waters not navigable-in-fact.^[22] Two other similar cases have since been filed.^[23]

Plaintiffs with conservation interests, have filed the nine suits challenging the NWPR seeking to have the rule overturned for being too narrow.^[24] The plaintiffs’ reasoning in each complaint is similar.^[25] For example, in California v. Wheeler, the complainant states argued that the NWPR violates the APA by applying Justice Scalia’s plurality opinion in Rapanos.^[26] In Rapanos, a minority of the Court agreed with Justice Scalia that the CWA only extends federal jurisdiction to “relatively permanent, standing or continuously flowing bodies of water.”^[27] While Justice Kennedy agreed with the result, he did not agree with the reasoning and instead would have relied on the significant nexus test to determine the outcome.^[28]  As a result, the complainant states argued that the court should enjoin the NWPR because the rule is improperly “based on the plurality opinion in Rapanos even though a majority of the Justices in Rapanos found that the plurality’s interpretation of ‘waters of the United States’ was inconsistent with the CWA’s text and purpose.”^[29] In Wheeler, the U.S. District Court for the Northern District of California denied the plaintiffs’ request for an injunction on the grounds that the complainants were likely to fail on the merits.^[30] In Colorado v. EPA, however, the U.S. District Court for Colorado enjoined the NWPR, reasoning that it was in the public interest to maintain the status quo while the case was decided on the merits.^[31] Both cases were appealed and all nine cases are ongoing.^[32]

The three cases brought by plaintiffs with industry interests argue that the courts should enjoin the NWPR because it defines navigable waters too broadly.^[33] They allege that the term navigable waters in the CWA is similar to the phrase “navigable capacity of the waters of the United States” in the Rivers and Harbors Act of 1899, and Congress, therefore, intended them to be interpreted in the same way.^[34] The language in the Rivers and Harbors Act applies to navigable-in-fact waters that can be used for transportation in commerce, and plaintiffs argue that the CWA should not extend to waters that do not meet that same threshold.^[35] Because the NWPR allows for federal jurisdiction over waters that are not navigable-in-fact, the plaintiffs ask the courts to hold that the rule is an unlawful interpretation of the CWA.^[36] The U.S. District Court for Oregon dismissed one such lawsuit for lack of standing.^[37] The two other cases are ongoing.^[38]

Uncertainty and the Possible Patchwork Definition of Jurisdictional Waters

Uncertainty about the WOTUS definition and, therefore, what waters are under federal jurisdiction is likely to continue for the near future. While the NWPR is active in every state except for Colorado, eleven cases challenging the rule are ongoing in different jurisdictions. If federal district or circuit courts reach different conclusions, as courts already have in Colorado and California, it would create an unpredictable patchwork of jurisdictional waters rules across the country.^[39] The definition of WOTUS and the corresponding scope of federal jurisdiction will remain uncertain at least until the ongoing cases challenging the NWPR reach their conclusions and potentially long afterwards.

Joshua Katz is an attorney at Bickerstaff Heath Delgado Acosta LLP in Austin, TX. He practices in the areas of environmental law, administrative law, water law, electric utility regulation, and civil litigation.

Caleb Ray is in his fourth and final year of a dual degree program pursuing a Master of Global Policy Studies from the LBJ School of Public Affairs and a JD from the University of Texas School of Law. He is an Articles and Notes Editor for the Texas Environmental Law Journal.

By Joshua Katz and Caleb Ray

Recent Publications

EPA Rule: Navigable Water Protections Rule and Ongoing Litigation

Introduction

The Clean Water Act (CWA) is the primary United States federal law governing water pollution. Under the CWA, the federal government has jurisdiction over all “navigable waters,” which the Act defines as “the waters of the United States, including territorial seas.”^[1] The CWA does not further define navigable waters or the waters of the United States (WOTUS). Instead, a combination of Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers regulations and U.S. Supreme Court decisions have defined and redefined WOTUS, thereby determining what waters fall within CWA federal regulatory jurisdiction.^[2]

The most recent update to the definition of WOTUS came in the EPA’s publication of the Navigable Waters Protection Rule (NWPR), which took effect June 22, 2020, and replaced the 2015 Clean Water Rule (CWR).^[3] The NWPR reduces the scope of the CWA and limits federal jurisdiction to waters that are sufficiently and visibly connected to traditionally navigable waters.^[4] Predictably, the NWPR faces several legal challenges in federal district court. The challenges fall into two main categories. In the first category, which this article broadly labels as those with conservation interests, the plaintiffs are states, environmental groups, and tribes.^[5] These conservation plaintiffs are challenging the NWPR’s interpretation of WOTUS as waters with a physical, surface water connection to traditional navigable waters as a violation of the Administrative Procedure Act (APA) because a majority of the U.S. Supreme Court has already rejected that definition.^[6] In the second category, which this article broadly labels as those with industry interests, the plaintiffs are agricultural groups.^[7] These industry plaintiffs are challenging on the grounds that the CWA specifically regulates navigable waters, which Congress meant to mean waters that are navigable-in-fact, while the NWPR includes bodies of water that are not themselves navigable.^[8] This article provides a brief background of the recent changes to the definition of WOTUS and an overview of the ongoing legal challenges to the NWPR.

Recent History of WOTUS: Rapanos v. U.S., Clean Water Rule, and Navigable Water Protection Rule

In Rapanos v. U.S., the U.S. Supreme Court’s most recent holding on the CWA and WOTUS, the Court issued a four-Justice plurality opinion that the CWA only provided jurisdiction over waters with a continuous surface connection to traditional jurisdictional waters.^[9] Writing for the plurality, Justice Scalia defined WOTUS to mean “relatively permanent, standing, or continuously flowing bodies of water” and specifically excluded intermittent or ephemeral bodies of water resulting from precipitation.^[10] Wetland and other remote waters, Scalia reasoned, were not within federal jurisdiction unless they had “continuous surface connection” to a relatively permanent WOTUS, “making it difficult to tell where the water ends and the wetland begins.”^[11] A mere hydrologic connection to a body of water within federal jurisdiction under the CWA, the plurality held, was insufficient for a water body to fall within federal jurisdiction.

Justice Kennedy, in his concurring opinion, articulated the analysis of the Court’s prior WOTUS holdings and defined a WOTUS as a body of water with a significant nexus to a water that falls within federal jurisdiction.^[12] Because Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” Justice Kennedy reasoned that bodies of water fall within federal jurisdiction under the CWA if they “significantly affect the chemical, physical, and biological integrity of other covered waters.”^[13] According to Justice Kennedy’s significant nexus test, a body of water falls within federal jurisdiction if it has hydrological connection significant enough to affect the water quality of traditional navigable waters.^[14]

Rapanos provides the basis for both the CWR and the NWPR. In the CWR, the EPA formalized Justice Kennedy’s significant nexus test to determine jurisdictional waters under the CWA on a categorical and case-by-case basis.^[15] Per the CWR, “significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of” traditionally navigable waters.^[16] This includes categorical waters, such as wetlands adjacent to other waters and noncontinuous tributaries, and waters not otherwise excluded by the rule on a case-by-case basis.^[17] The NWPR dispenses with the CWR’s implementation of Kennedy’s significant nexus analysis and instead presents a federal jurisdiction over “those waters and wetlands that maintain a significant surface water connection to traditional navigable waters.”^[18]

Challenges to the NWPR

The NWPR was challenged in two federal district court cases on April 27, 2020, six days after the final rule was published.^[19] In the first case, Chesapeake Bay Found. v. Wheeler, plaintiffs with conservation interests challenged the rule on the grounds that its interpretation of WOTUS violated the APA and was too narrow.^[20] Eight similar cases have since been filed in different district courts.^[21] In the second case, New Mexico Cattle Growers’ Association v. EPA, plaintiffs with industry interests challenged the rule on the grounds that its interpretation of WOTUS was too broad, as it provided federal jurisdiction over waters not navigable-in-fact.^[22] Two other similar cases have since been filed.^[23]

Plaintiffs with conservation interests, have filed the nine suits challenging the NWPR seeking to have the rule overturned for being too narrow.^[24] The plaintiffs’ reasoning in each complaint is similar.^[25] For example, in California v. Wheeler, the complainant states argued that the NWPR violates the APA by applying Justice Scalia’s plurality opinion in Rapanos.^[26] In Rapanos, a minority of the Court agreed with Justice Scalia that the CWA only extends federal jurisdiction to “relatively permanent, standing or continuously flowing bodies of water.”^[27] While Justice Kennedy agreed with the result, he did not agree with the reasoning and instead would have relied on the significant nexus test to determine the outcome.^[28]  As a result, the complainant states argued that the court should enjoin the NWPR because the rule is improperly “based on the plurality opinion in Rapanos even though a majority of the Justices in Rapanos found that the plurality’s interpretation of ‘waters of the United States’ was inconsistent with the CWA’s text and purpose.”^[29] In Wheeler, the U.S. District Court for the Northern District of California denied the plaintiffs’ request for an injunction on the grounds that the complainants were likely to fail on the merits.^[30] In Colorado v. EPA, however, the U.S. District Court for Colorado enjoined the NWPR, reasoning that it was in the public interest to maintain the status quo while the case was decided on the merits.^[31] Both cases were appealed and all nine cases are ongoing.^[32]

The three cases brought by plaintiffs with industry interests argue that the courts should enjoin the NWPR because it defines navigable waters too broadly.^[33] They allege that the term navigable waters in the CWA is similar to the phrase “navigable capacity of the waters of the United States” in the Rivers and Harbors Act of 1899, and Congress, therefore, intended them to be interpreted in the same way.^[34] The language in the Rivers and Harbors Act applies to navigable-in-fact waters that can be used for transportation in commerce, and plaintiffs argue that the CWA should not extend to waters that do not meet that same threshold.^[35] Because the NWPR allows for federal jurisdiction over waters that are not navigable-in-fact, the plaintiffs ask the courts to hold that the rule is an unlawful interpretation of the CWA.^[36] The U.S. District Court for Oregon dismissed one such lawsuit for lack of standing.^[37] The two other cases are ongoing.^[38]

Uncertainty and the Possible Patchwork Definition of Jurisdictional Waters

Uncertainty about the WOTUS definition and, therefore, what waters are under federal jurisdiction is likely to continue for the near future. While the NWPR is active in every state except for Colorado, eleven cases challenging the rule are ongoing in different jurisdictions. If federal district or circuit courts reach different conclusions, as courts already have in Colorado and California, it would create an unpredictable patchwork of jurisdictional waters rules across the country.^[39] The definition of WOTUS and the corresponding scope of federal jurisdiction will remain uncertain at least until the ongoing cases challenging the NWPR reach their conclusions and potentially long afterwards.

Joshua Katz is an attorney at Bickerstaff Heath Delgado Acosta LLP in Austin, TX. He practices in the areas of environmental law, administrative law, water law, electric utility regulation, and civil litigation.

Caleb Ray is in his fourth and final year of a dual degree program pursuing a Master of Global Policy Studies from the LBJ School of Public Affairs and a JD from the University of Texas School of Law. He is an Articles and Notes Editor for the Texas Environmental Law Journal.