Maria Carolina Crespo, LLM Student, Attends 40th ALI-ABA Environmental Law Course in Washington, D.C.

Maria Carolina Crespo, an LLM student from Argentina, recently attended the 40th ALI-ABA Environmental Law Course in Washington, D.C.

The advanced course of study provided a broad overview of the latest developments arising in each of the major areas of U.S. environmental law, thus providing attendees an understanding of the “big picture,” as well as an opportunity to learn about the changes in other intersecting facets of environmental law that may affect their practices.

The course featured over 16 hours of instruction, particularly looking at legislative initiatives, regulatory changes, and new presidential-related issues arising from the first year of the Obama administration.

The first day involved a series of introductory lectures on the Clean Air Act, Clean Water Act, Endangered Species Act, Superfund, and the Toxic Substances Control Act. The second and third days involved presentations from more than 30 seasoned practitioners, federal government representatives (including the EPA, DOJ, State Department, etc), law professors and counsel and other professionals from advocacy organizations.

This year’s top-flight faculty included EPA’s General Counsel Scott Fulton and Assistant Administrator Steve Owens, as well as Counselor to the Secretary of Interior Steve Black.

"The course offered a very good overview about environmental law in an effective format," Ms. Crespo reports. "Also the course provided a good diversity in topics especially in water and air issues, climate change, and the challenges the Obama administration will face in the near future."

By the way, you have no doubt noticed the pictures of Ms. Crespo in front of the White House as well as the picture (just to the left) of one of the White House entrances. Her stay in Washington was prolonged a week longer than she had expected by the heavy snowfalls that the nation's capital experienced during the early days of her visit. So she had "extra" time to explore the city. But she was a good sport about it, and never mentioned to anyone that while the temperatures were cold and snowy in Washington, the weather in her home city -- Buenos Aires -- was sunny and hot!

"Cap-and-Dividend:" A Realistic "Replacement" for Cap-and-Trade?

In contrast to one year ago, few people in the U.S. now believe that the U.S. Congress will be able to agree anytime soon on a greenhouse gas emissions-limiting bill that focuses on cap-and-trade.

Last summer, with the passage in the U.S. House of Representatives of the Waxman-Markey Energy bill there was some expectation that the Congress might be able to cobble together something. However, in the wake of the Obama Administration's inability to push through a health care bill, no one is holding their breath now in anticipation of a cap-and-trade measure.

Despite the palpable disappointment of many "greens," a cap-and-trade approach -- similar to what the European Union has agreed on -- may be a nonstarter. What might replace it, however, is a measure that has been characterized as "cap-and-dividend." Introduced in December 2009 by United States Senators Maria Cantwell, Washington state Democrat, and Susan Collins, Maine Republican, the cap-and-dividend measure has begun to attract a growing amount of attention.

The cap-and-dividend concept works in this manner:

• In 2012 the president will set an initial target amount of carbon from fossil fuels that can be emitted without disrupting the economy. The cap will gradually decline.
• Revenue generated by "carbon permits" comes from producers and importers of coal, natural gas, and oil. In other words, a power plant that burns coal does not buy carbon permits; they are paid for by the mining company that mined the coal. Using this approach, the "upstream" point of regulation means that only 2,000 to 3,000 fossil fuel producers and importers will face any new compliance obligations.
• Carbon price permits will be determined by a bidding process among fossil fuel companies participating in monthly auctions. Only entities with a compliance obligation are eligible to participate -- no Wall Street traders or speculators will be allowed in.
• Seventy-five percent of revenues will be returned to consumers (as a "dividend") directly each month on an equal per capita basis to offset energy cost increases. Average annual refunds for a family of four are estimated to be about $1,000. According to Senator Cantwell, "Sending auction revenues directly to consumers means 80 percent of the American public will incur no net costs and the lowest income population will receive net positive benefits."
• Twenty-give percent of revenues will go into the Clean Energy Reinvestment Trust Fund to pay for additional greenhouse gas emissions reductions, low-carbon energy investment, climate change adaptation, and related regional economic adjustment projects.

Publications ranging from The Economist to The Denver Post have written positively about the concept. For example, The Economist ("A Refreshing Dose of Honesty," Feb. 4, 2010) wrote that the bill "is refreshingly simple. At a mere 40 pages, it is one thirty-sixth as long as the monstrous House bill (known as 'Waxman-Markey' after its co-sponsors), which would regulate everything from televisions to 'bottle-type water dispensers' and is completely incomprehensible to a layman." Similarly, The Denver Post editorialized ("Fresh Start on Carbon Battle," Feb. 16, 2010), "[T]he structure of the system would encourage conservation and give Americans a big incentive to burn cleaner fuel...We very much like that it would avoid the creation of a vast energy-trading market such as the one envisioned in the Waxman-Markey bill."

Will the bill succeed? Good question and one not readily answered at this early stage. But nevertheless, a few observations:

• Wall Street bankers are not going to like the measure since it cuts them out "of the action" associated with permit trading.
• Fossil fuel companies are not likely to support it either for obvious reasons.
• The current simplicity of the measure means that all of the back room deals that were cut in putting the Waxman-Markey bill together will be gone, thus disappointing many Representatives who had worked hard to battle for their districts' interests (real and perceived).
• Some sectors of the economy won't like it either since they have been granted hugely favorable treatment in the House bill.

On the other hand, in Washington's current partisan stalemate the fact that a Democrat and a Republican senator have signed on to the bill is worthy of mention, but this in and of itself probably doesn't mean a great deal right now.

There are many difficult legislative issues on the 2010 political agenda -- jobs, financial sector regulation, health care -- so don't expect too much time devoted to cap-and-dividend. Only time will tell whether it is a game changer or merely another legislative idea destined to hit the scrap heap of other "good ideas" that came to naught. But it is a concept that all of us should keep in mind.

Click here to see the bill as originally introduced, and click here to see an in-depth overview of the measure.

Don C. Smith

Hiring News: LLM Graduate Josh German Begins Work at the Bureau of Reclamation

Josh German, 2009 LLM graduate, has started work at the Bureau of Reclamation in the Denver Federal Center.

Josh develops, implements, and oversees three programs: WaterSMART Grants; Title XVI; and Basin Studies. According to Josh, his duties include "drafting Funding Opportunity Announcements, editing program related materials, and participating in the application review process."

The website for these three programs can be accessed by clicking here.

Former Division I Hockey Player Daniella Ciarletta Studies (and Plays Women's Hockey) at DU

Tonight the University of Denver Women's Club Ice Hockey team plays its biggest game of the year when it takes on the University of Colorado Buffaloes in Boulder. The game will be particularly interesting for those of us in the Environmental and Natural Resources Law & Policy Graduate Program since one of the DU players will be "our own" Daniella Ciarletta, a student in the Masters of Resource Law Studies program.

But the story gets even more interesting since Ms. Ciarletta is also associated (although not tonight) with the CU team as a goalie coach! How do you play as a member of one team while being associated as a coach with the other? Ms. Ciarletta -- a former starting goalie at Providence College -- explains all of this below as well as describes her career in hockey:

"Within women’s hockey at the collegiate level there are the NCAA and the ACHA. The NCAA comprises the Division I programs, of which I was a part the prior four years before I came to DU, and the Division III programs. Below the NCAA is the ACHA which is made up of collegiate teams that are considered at the 'club' level. Many schools have both NCAA and ACHA programs such as DU with the DU men’s NCAA and ACHA.

"The DU women’s club team is not an ACHA team. In Colorado there are only two ACHA women’s programs -- CU and CSU. CSU is a first year program. DU plays in the Women’s Association of Colorado Hockey (WACH), which is a senior women’s league consisting of teams from all over Colorado. CU also plays in the WACH league so that they can play more games without having to travel out of state. They are only required to play 12 ACHA games in a season.

"Tonight's game is a WACH game between DU and CU. However, there is interest in DU becoming an ACHA team and competing nationally on the collegiate stage. This would help develop women’s hockey in the state of Colorado. This weekend’s game is a step toward showing the school -- and the other ACHA teams -- that DU has potential to be a competitor in the ACHA, which will help in getting league approval to join.

"When I first moved to Denver I was not planning to play for the DU club team after spending four years at the NCAA Division I level. I was, however, associated with the coaching staff at CU for the ACHA team. My good friend from high school is the head coach at CU and brought me on as a goalie coach. I have been traveling and coaching the CU team for the 09-10 season.

"In late October I was approached by one of the coaches at DU because the DU goalie had quit the team and they were in need of a goalie. So to help the team I agreed to finish the season for them in net. Prior to my arrival on the team they had not won a game. Since October we have won five games and have one tie.

"I started playing hockey when I was five in the Philadelphia area. I played on all boys AA and AAA teams until I was 14. Before I started high school I moved to Minnesota with my mom. There I made the change to women’s hockey. I played on my hometown varsity team and A traveling team until I went to Shattuck St. Mary’s (SSM) for my junior and senior year of high school. SSM is a boarding school in Faribault, MN, which is known for its hockey.

"My senior year (2005) our the girls prep team won the school’s first Girls U-19 National Championship in Centennial CO. I spent my freshman year of college playing for the University of Minnesota – Duluth before transferring and finishing my college career at Providence College."

The game will be played at 7.30 at the CU Recreation Center. All of us at DU wish Danielle good luck playing Friday night (but not necessarily coaching)!

Part II: Dr. Elizabeth Economy Considers China's Environmental Challenges and Looks Ahead

Dr. Elizabeth Economy recently spoke about "China and the Environment" in a lecture at the University of Denver. This posting is the second of two parts about Dr. Economy's observations about China. Dr. Economy is a world recognized expert on the development and rise of this 1.3 billion person country.

Yesterday's posting related to Dr. Economy's comments about where China finds itself today in terms of environmental challenges. It can be accessed by clicking here. In today's posting, Dr. Economy's thoughts about the response of China's leaders, the role the US might play in helping China, and concluding thoughts are the focus.

II. Response of China's Leaders

China's leaders have responded in several ways to the growing environmental threat. First, the national leaders in Beijing have set targets for environmental protection and some of the targets have been "bold," as characterized by Dr. Economy. However, "real environmental protection" takes place at the local level and, generally speaking, local officials have not been very aggressive at implementing or enforcing the central government's targets.

Second, China is cautiously approaching the concept of "rule of law," a situation Dr. Economy described as in a "nascent stage."

China's leaders have enthusiastically engaged the international community. For instance, China has signed many environmental-related treaties.

However, the greatest hope, according to Dr. Economy, over the next five to 10 years is the non governmental organization (NGO) sector. Despite the fact that many of the NGOs have some relationship to the Chinese central government, there are independent NGOs. "They are developing and expanding" and will likely play a greater role as China moves towards the future, she predicted.

III. China, the US and Environmental Issues

There are several elements to the China-US relationship in the context of environmental issues, Dr. Economy explained, beginning with the need for the US to "lead by example." However, in some cases the US is simply not leading. For instance, "The fact that the US has not pursued greenhouse gas legislation cuts against [US efforts to influence China]," she said.

On the other hand, the US can seek to help China by assisting with "capacity building" in the areas of the law, regulations, and pricing systems. She pointed out that one third of China's factories have modern pollution prevention equipment, but simply don't use it. There is no economic-related incentive to do so, she pointed out. Fines in some cases do not exist or are so inconsequential as to reduce the industries' incentive to actually run the pollution equipment.

But in the final analysis, she said, "The [environmental] issue is really China's to solve."

IV. Conclusion

Dr. Economy is pessimestic in the short term about China's willingness and ability to take the steps necessary to prevent further environmental degradation. "The way China is developing is extremely negative on a global level," she said. However, in the longer term, Dr. Economy harbors some level of optimism. "The Chinese people are becoming aware of and concerned about the environment," she said noting that typically the richer a society becomes the more seriously are its concerns about environmental protection.

Part one appeared yesterday.

Part I: China Expert Dr. Elizabeth Economy Discusses China's Environment and the Challenges it Poses for the World's Most Populated Country

Dr. Elizabeth Economy recently spoke about "China and the Environment" in a lecture at the University of Denver. This posting is the first of two parts about Dr. Economy's observations about China, a country that will likely assume in the next two to three decades the mantle of the world's largest economy.

Dr. Economy, CV Starr Senior Fellow and Director of Asia Studies for the Council on Foreign Relations, is particularly well qualified to comment about China's environment. Author of the award-winning 2004 book "The River Runs Black: The Environmental Challenge to China's Future," Dr. Economy is a world renown expert on the development and rise of this 1.3 billion person country.

Dr. Economy began by noting that New York Times columnist Tom Friedman has referred to China as the "green Sputnik," referring to the space launch achieved by the U.S.S.R. in the late 1950s. But, as she noted, the real question is whether China will be known as the world's leading polluter or a "green technology" giant that the rest of the world may learn from.

I. China Today

China's current challenge reflects that of a developing country that is also, in many respects, a developed industrial country. This plays out in many ways. One third of China's land suffers from the fall of acid rain. The country relies on coal for 70 percent of its energy. This is a key problem, particularly when one understands that the consumption of coal in China doubled between 2000 and 2007. Meanwhile, the energy that is generated in China is used in a wildly inefficient manner thus further exacerbating the country's coal-fired energy woes. Then there is the matter of the vast numbers of Chinese who are moving from rural areas to cities. China expects 400 million people to move from rural areas to cities between now and 2030.

To the average Chinese person water pollution and scarcity are the two biggest problems. Part of this problem is a result of the fact that one third of the industrial waste water generated in the country is poured without any treatment whatsoever into water bodies.

Then there is land degradation. A quarter of the country's land is highly degraded or dessert. "This is a serious and growing problem," Dr. Economy observed.

China's role as a global emitter of pollutants is also an increasing issue. It is the largest emitter of carbon dioxide -- a "title" it wrested from the United States just last year -- and it is also the largest polluter of the Pacific Ocean. Moreover, as Chinese companies venture abroad in search of investment opportunities, all too often they also "export poor environmental practices."

On the other hand, Dr. Economy said the Chinese leadership has recently begun to take a more serious look at environmental issues. "They have targeted improving the environment because they know the environment affects social, political, and economic issues," she said. For example, environmental pollution results in the "sacrifice" of eight to 12 percent of the gross domestic product. "It is hard to know how they arrived at these numbers, but the leaders are asking about this and view it as a very important issue," she said.

There is also growing concern about the relationship of the environment to public health, particularly with respect to the lack of clean water. Currently 700 million people drink polluted water, and of those 190 million drink water that is harmful to their health.

Perhaps the biggest issue is environmental degradation and social unrest, and this will grow in intensity, she predicted, even in rural areas. There is beginning to be a "not in my backyard" mentality involving chemical plants and other potential harmful installations.

And finally is the matter of how China is perceived in the world. "They don't want to be perceived as a big polluter," Dr. Economy said.

Part two will appear tomorrow.

"Careers in Environmental, Energy, and Resources Law" Teleconference Program Available on the Web

Recently the American Bar Association Section of Environment, Energy, and Resources sponsored a teleconference program entitled "Careers in Environmental, Energy, and Resources Law."

According to the ABA, "In this teleconference, four lawyers with varied backgrounds in the fields of environmental, energy and natural resources law will provide practical guidance on various career options, advice for achieving certain career goals, and overviews of their day-to-day practices."

The teleconference, which can be accessed by clicking here, provided career option guidance for individuals interested in natural resources, energy, and environmental law. It also included explanations of "pathways" for pursuing careers in these fields.

The panelists on the program included:

• Montina Cole of Schiff Hardin LLP in Washington, D.C.

• John C. Cruden of the U.S. Department of Justice in Washington, D.C.

• Robert Ehrler of E.On U.S.., a German-owned utility operating in Louisville, Kentucky

• Bill Sapp of the Southern Environmental Law Center in Atlanta, Georgia