Feminist agricultural law: A scholarly confessional

Feminist agricultural law. It is an idea as compelling as it is timeless. On Agricultural Law, I offer some observations on agricultural legal feminism, from a scholarly confessional to incipient thoughts on an intellectual agenda.

Exotic game, lethal invaders

The Florida Fish and Wildlife Conservation Commission has declared special hunting season on reptilian species of environmental concern: Burmese python, Indian python, reticulated python, northern and southern African rock python, amethystine or scrub python, green anaconda, and Nile monitor lizard. Hunters may take these species throughout state lands in southern Florida from March 8 through April 17, 2010.

The accompanying Miami Herald video portrays Bob Hill, who hunts pythons and other invasive reptiles in the Everglades for the South Florida Water Management District. The New York Times has hosted a forum on the use of hunting as one weapon against alien invasive species.

Editor's note: Cross-posted at Biolaw.

The agony and the sweat

William Faulkner's speech upon his acceptance of the Nobel Prize for Literature, Stockholm City Hall, December 10, 1950 (audio via YouTube):

I feel that this award was not made to me as a man, but to my work — a life's work in the agony and sweat of the human spirit, not for glory and least of all for profit, but to create out of the materials of the human spirit something which did not exist before. So this award is only mine in trust. It will not be difficult to find a dedication for the money part of it commensurate with the purpose and significance of its origin. But I would like to do the same with the acclaim too, by using this moment as a pinnacle from which I might be listened to by the young men and women already dedicated to the same anguish and travail, among whom is already that one who will some day stand here where I am standing.

Our tragedy today is a general and universal physical fear so long sustained by now that we can even bear it. There are no longer problems of the spirit. There is only the question: When will I be blown up? Because of this, the young man or woman writing today has forgotten the problems of the human heart in conflict with itself which alone can make good writing because only that is worth writing about, worth the agony and the sweat.

He must learn them again. He must teach himself that the basest of all things is to be afraid; and, teaching himself that, forget it forever, leaving no room in his workshop for anything but the old verities and truths of the heart, the old universal truths lacking which any story is ephemeral and doomed — love and honor and pity and pride and compassion and sacrifice. Until he does so, he labors under a curse. He writes not of love but of lust, of defeats in which nobody loses anything of value, of victories without hope and, worst of all, without pity or compassion. His griefs grieve on no universal bones, leaving no scars. He writes not of the heart but of the glands.

Until he relearns these things, he will write as though he stood among and watched the end of man. I decline to accept the end of man. It is easy enough to say that man is immortal simply because he will endure: that when the last dingdong of doom has clanged and faded from the last worthless rock hanging tideless in the last red and dying evening, that even then there will still be one more sound: that of his puny inexhaustible voice, still talking. I refuse to accept this. I believe that man will not merely endure: he will prevail. He is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance. The poet's, the writer's, duty is to write about these things. It is his privilege to help man endure by lifting his heart, by reminding him of the courage and honor and hope and pride and compassion and pity and sacrifice which have been the glory of his past. The poet's voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.

The rhetorical orgin of Sarah Palin's "death panel"

Despite her July 26, 2009, resignation as governor of Alaska, Sarah Palin remains a formidable political force. She has shifted her primary written platform from Twitter to Facebook.

Sarah Palin's Facebook page has had an immediate and profound impact on national politics. Her Statement on the Current Health Care Debate notably handed opponents of health care reform a potent rhetorical weapon:

The Democrats promise that a government health care system will reduce the cost of health care, but . . . government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.

Health care reform, whatever its virtues or drawbacks, will do no such thing. That at any rate is my belief; I side with those observers who believe that Palin's fictional "death panel" has grotesquely wounded political discourse on health policy. But my objective here is not political. I aim simply to trace the rhetorical origin of the term death panel.

In all of American law, exactly one phrase carries a resonance comparable to death panel. Its source is undoubtedly familiar to Sarah Palin: the Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 375. In an effort to inject more flexibility into the act after TVA v. Hill, 437 U.S. 153 (1978), the 1978 amendments created the Endangered Species Committee and empowered it, upon a vote of no fewer than five of its seven members, to exempt a federal agency from section 7 of the original Endangered Species Act of 1973. These conditions must be met before the committee authorizes a section 7 exemption:

1. There must be no reasonable alternative to the agency's action.
2. The benefits of the action must outweigh the benefits of conserving the species.
3. The action is of regional or national importance.
4. Neither the federal agency or the exemption applicant made irreversible commitment to the resources.

Of course, no one calls the Endangered Species Committee by that name. Everyone calls it the God Squad. That name is apt, not because the committee possesses "collective wisdom but because the decisions it may render were once left to an even higher authority."

As governor of Alaska and as an avid, lifelong hunter, Sarah Palin has been quick to find fault with federal environmental law. She is no fan of aggressive enforcement of the Endangered Species Act. That statute's God Squad restores some of the anthropocentric "balance" that one might imagine Sarah Palin to favor. Strange though it may seem, this rarely invoked provision of the Endangered Species Act may well have triggered the poetic imagination of Sarah Palin. The "God Squad" appears to given her the rhetorical weapon by which to condemn the feared potential of health care reform to assume divine power over life and death.

Malaise in America again

Thirty years ago, President Jimmy Carter delivered A Crisis of Confidence, better known as "The Malaise Speech." We stand again on a precipice of national decline, having frittered away three decades of opportunities to address energy dependency, environmental protection, and climate change. That "malaise" speech may not be so bound in time after all.

Jimmy Carter, A Crisis of Confidence  (July 15, 1979) (transcript)

Click on the image of Jimmy Carter to read excerpts from A Crisis of Confidence:

Good evening. This a special night for me. Exactly three years ago, on July 15, 1976, I accepted the nomination of my party to run for President of the United States. I promised you a President who is not isolated from the people, who feels your pain, and who shares your dreams, and who draws his strength and his wisdom from you.

During the past three years I’ve spoken to you on many occasions about national concerns, the energy crisis, reorganizing the government, our nation’s economy, and issues of war and especially peace. But over those years the subjects of the speeches, the talks, and the press conferences have become increasingly narrow, focused more and more on what the isolated world of Washington thinks is important. Gradually, you’ve heard more and more about what the government thinks or what the government should be doing and less and less about our nation’s hopes, our dreams, and our vision of the future.

Ten days ago, I had planned to speak to you again about a very important subject — energy. For the fifth time I would have described the urgency of the problem and laid out a series of legislative recommendations to the Congress. But as I was preparing to speak, I began to ask myself the same question that I now know has been troubling many of you: Why have we not been able to get together as a nation to resolve our serious energy problem?

It’s clear that the true problems of our nation are much deeper — deeper than gasoline lines or energy shortages, deeper even than inflation or recession. . . .

[A]fter listening to the American people, I have been reminded again that all the legislation in the world can’t fix what’s wrong with America. So, I want to speak to you first tonight about a subject even more serious than energy or inflation. I want to talk to you right now about a fundamental threat to American democracy.

I do not mean our political and civil liberties. They will endure. And I do not refer to the outward strength of America, a nation that is at peace tonight everywhere in the world, with unmatched economic power and military might.

The threat is nearly invisible in ordinary ways.

It is a crisis of confidence.

It is a crisis that strikes at the very heart and soul and spirit of our national will. We can see this crisis in the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our nation.

The erosion of our confidence in the future is threatening to destroy the social and the political fabric of America.

The confidence that we have always had as a people is not simply some romantic dream or a proverb in a dusty book that we read just on the Fourth of July. It is the idea which founded our nation and has guided our development as a people. Confidence in the future has supported everything else — public institutions and private enterprise, our own families, and the very Constitution of the United States. Confidence has defined our course and has served as a link between generations. We’ve always believed in something called progress. We’ve always had a faith that the days of our children would be better than our own.

Our people are losing that faith, not only in government itself but in the ability as citizens to serve as the ultimate rulers and shapers of our democracy. As a people we know our past and we are proud of it. Our progress has been part of the living history of America, even the world. We always believed that we were part of a great movement of humanity itself called democracy, involved in the search for freedom; and that belief has always strengthened us in our purpose. But just as we are losing our confidence in the future, we are also beginning to close the door on our past.

In a nation that was proud of hard work, strong families, close-knit communities, and our faith in God, too many of us now tend to worship self-indulgence and consumption. Human identity is no longer defined by what one does, but by what one owns. But we’ve discovered that owning things and consuming things does not satisfy our longing for meaning. We’ve learned that piling up material goods cannot fill the emptiness of lives which have no confidence or purpose.

The symptoms of this crisis of the American spirit are all around us. For the first time in the history of our country a majority of our people believe that the next five years will be worse than the past five years. Two-thirds of our people do not even vote. The productivity of American workers is actually dropping, and the willingness of Americans to save for the future has fallen below that of all other people in the Western world.

As you know, there is a growing disrespect for government and for churches and for schools, the news media, and other institutions. This is not a message of happiness or reassurance, but it is the truth and it is a warning.

These changes did not happen overnight. They’ve come upon us gradually over the last generation, years that were filled with shocks and tragedy. . . .

Looking for a way out of this crisis, our people have turned to the Federal Government and found it isolated from the mainstream of our nation’s life. Washington, D.C., has become an island. The gap between our citizens and our government has never been so wide. The people are looking for honest answers, not easy answers; clear leadership, not false claims and evasiveness and politics as usual.

What you see too often in Washington and elsewhere around the country is a system of government that seems incapable of action. You see a Congress twisted and pulled in every direction by hundreds of well-financed and powerful special interests.

You see every extreme position defended to the last vote, almost to the last breath by one unyielding group or another. You often see a balanced and a fair approach that demands sacrifice, a little sacrifice from everyone, abandoned like an orphan without support and without friends.

Often you see paralysis and stagnation and drift. You don’t like it, and neither do I. What can we do?

First of all, we must face the truth, and then we can change our course. We simply must have faith in each other, faith in our ability to govern ourselves, and faith in the future of this nation. Restoring that faith and that confidence to America is now the most important task we face. It is a true challenge of this generation of Americans. . . .

We know the strength of America. We are strong. We can regain our unity. We can regain our confidence. We are the heirs of generations who survived threats much more powerful and awesome than those that challenge us now. Our fathers and mothers were strong men and women who shaped a new society during the Great Depression, who fought world wars and who carved out a new charter of peace for the world. . . .

We are at a turning point in our history. There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.

All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our energy problem.

Energy will be the immediate test of our ability to unite this nation, and it can also be the standard around which we rally. On the battlefield of energy we can win for our nation a new confidence, and we can seize control again of our common destiny. . . .

The energy crisis is real. It is worldwide. It is a clear and present danger to our nation. These are facts and we simply must face them.

What I have to say to you now about energy is simple and vitally important.

Point one: I am tonight setting a clear goal for the energy policy of the United States. Beginning this moment, this nation will never use more foreign oil than we did in 1977 — never. From now on, every new addition to our demand for energy will be met from our own production and our own conservation. The generation-long growth in our dependence on foreign oil will be stopped dead in its tracks right now and then reversed as we move through the 1980s, for I am tonight setting the further goal of cutting our dependence on foreign oil by one-half by the end of the next decade — a saving of over four and a half million barrels of imported oil per day.

Point two: To ensure that we meet these targets, I will use my presidential authority to set import quotas. I’m announcing tonight that for 1979 and 1980, I will forbid the entry into this country of one drop of foreign oil more than these goals allow. These quotas will ensure a reduction in imports even below the ambitious levels we set at the recent Tokyo summit.

Point three: To give us energy security, I am asking for the most massive peacetime commitment of funds and resources in our nation’s history to develop America’s own alternative sources of fuel — from coal, from oil shale, from plant products for gasohol, from unconventional gas, from the sun.

I propose the creation of an energy security corporation to lead this effort to replace two and a half million barrels of imported oil per day by 1990. The corporation will issue up to five billion dollars in energy bonds, and I especially want them to be in small denominations so average Americans can invest directly in America’s energy security.

Just as a similar synthetic rubber corporation helped us win World War II, so will we mobilize American determination and ability to win the energy war. Moreover, I will soon submit legislation to Congress calling for the creation of this nation’s first solar bank which will help us achieve the crucial goal of twenty percent of our energy coming from solar power by the year 2000.

These efforts will cost money, a lot of money, and that is why Congress must enact the windfall profits tax without delay. It will be money well spent. Unlike the billions of dollars that we ship to foreign countries to pay for foreign oil, these funds will be paid by Americans, to Americans. These will go to fight, not to increase, inflation and unemployment.

Point four: I’m asking Congress to mandate, to require as a matter of law, that our nation’s utility companies cut their massive use of oil by fifty percent within the next decade and switch to other fuels, especially coal, our most abundant energy source.

Point five: To make absolutely certain that nothing stands in the way of achieving these goals, I will urge Congress to create an energy mobilization board which, like the War Production Board in World War II, will have the responsibility and authority to cut through the red tape, the delays, and the endless roadblocks to completing key energy projects.

We will protect our environment. But when this nation critically needs a refinery or a pipeline, we will build it.

Point six: I’m proposing a bold conservation program to involve every state, county, and city and every average American in our energy battle. This effort will permit you to build conservation into your homes and your lives at a cost you can afford.

I ask Congress to give me authority for mandatory conservation and for standby gasoline rationing. To further conserve energy, I’m proposing tonight an extra ten billion dollars over the next decade to strengthen our public transportation systems. And I’m asking you for your good and for your nation’s security to take no unnecessary trips, to use carpools or public transportation whenever you can, to park your car one extra day per week, to obey the speed limit, and to set your thermostats to save fuel. Every act of energy conservation like this is more than just common sense, I tell you it is an act of patriotism.

Our nation must be fair to the poorest among us, so we will increase aid to needy Americans to cope with rising energy prices. We often think of conservation only in terms of sacrifice. In fact, it is the most painless and immediate ways of rebuilding our nation’s strength. Every gallon of oil each one of us saves is a new form of production. It gives us more freedom, more confidence, that much more control over our own lives.

So, the solution of our energy crisis can also help us to conquer the crisis of the spirit in our country. It can rekindle our sense of unity, our confidence in the future, and give our nation and all of us individually a new sense of purpose. . . .

I do not promise you that this struggle for freedom will be easy. I do not promise a quick way out of our nation’s problems, when the truth is that the only way out is an all-out effort. What I do promise you is that I will lead our fight, and I will enforce fairness in our struggle, and I will ensure honesty. And above all, I will act.

We can manage the short-term shortages more effectively, and we will; but there are no short-term solutions to our long-range problems. There is simply no way to avoid sacrifice. . . .

Little by little we can and we must rebuild our confidence. We can spend until we empty our treasuries, and we may summon all the wonders of science. But we can succeed only if we tap our greatest resources — America’s people, America’s values, and America’s confidence.

I have seen the strength of America in the inexhaustible resources of our people. In the days to come, let us renew that strength in the struggle for an energy-secure nation.

In closing, let me say this: I will do my best, but I will not do it alone. Let your voice be heard. Whenever you have a chance, say something good about our country. With God’s help and for the sake of our nation, it is time for us to join hands in America. Let us commit ourselves together to a rebirth of the American spirit. Working together with our common faith we cannot fail.

Thank you and good night.

In Defense of Law School--A Response to Lippe

There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty. There is no question that there is room for improvement in the American law school model, as there is in every educational model. Bill Henderson at Indiana University Law School, in a post on the Legal Profession Blog, makes a good case that Lippe's post deserves attention and that if times are changing for lawyers' clients, they are going to change for lawyers as well, meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.

Before I go further, a few disclosures. First, I am a law professor, a tenured one at that. I have been tenured at a rural public law school and at a public law school in the state capital of a major state, and I have visited at private "top 25" law schools. I've seen the spectrum of legal education. Second, I also practiced law for longer than most law professors prior to entering teaching--12 years with a very large law firm, the last four as a partner. I was in charge of hiring for one of the firm's offices for two years. I know what the practice of law is about, and I know what to expect at the entry level hiring stage. The upshot is that I do value the value of ensuring that law schools prepare graduates for entry into the profession, but I also equally value how important it is not to reduce the law school experience to that of a trade school. Now back to Lippe's ditty.

In short, although there is some truth in the basic theme of Lippe's assessment of the role of law schools and what they deliver, which I will get into later, how he arrives there is thoroughly off base. Here's why:

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide "inferior training." Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not. Rather, I suggest that medical and business schools are right up there with, if not ahead of, law schools in the need to examine their pedagogical models. In any event, it is not useful to compare medical, business, and law school models--they are three vastly different professions with distinct subject matters and professional pathways.

2. Lippe goes further, arguing that "law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." Just like medical and business schools do, right? Wrong. Medical schools do not produce "fully functioning physicians" and business schools do not produce "fully functioning corporate executives." Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools. Indeed, Lippe identifies a root problem with legal profession--that "firms' appetite for subsidizing training will decline." It already has declined, because the "law as a business" model of elite law firms, which replaced "law as a profession" in the 1980s, has squeezed out everything but the billable hour from the life of associates. With a few notable and noble exceptions, BigLaw law firms want more and more to be able to charge new associates' billable hours they can justify to clients, but want less and less to bear the cost of getting the new lawyers "fully functional." Most of the discontent Lippe identifies seems to come from practitioners locked in this "law as business" model, whether in elite law firms or large corporate departments. It may be time for them to reexamine their commitment to training young lawyers, as well as to law as a profession.

3. Nowhere, for that matter, does Lippe define what a "fully functional lawyer" is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not. Consider that most first year law students come to law school with little or no knowledge of the legal institutions of our nation beyond the basic civics class level. Lippe argues that the "time to [lawyers'] professional independence is longer [than physicians']. This is not because law is more complex or riskier than medicine, but because legal training is inferior." Well, at least he concedes law is complex and risky. But is it fair to say that I wouldn't want a newly-minted lawyer arguing a bet the company lawsuit for me because his or her training was inferior? No. The reason why is because I want someone who has argued hundreds of other less high stakes cases before taking on my high stakes case, and that simply takes time on the job. There is no way in three years of law school to get someone into that position. What we can and should do, of course, is strive to get our graduates into a position to become such a lawyer.

4. Part of the problem with Lippe's pitch in this respect is that he talks about law schools preparing graduates for the "legal profession" as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant. I'm not sure what Lippe believes goes on in law firms, but I know from my practice days that lawyers at law firms with sophisticated clients are often asked to think outside the box, to propose changes to legislation or regulations, to make novel arguments in court, and to suggest cutting edge legal strategies. Moreover, the legal profession extends far beyond law firms and in-house counsel offices. Lawyers working for public entities and non-governmental organizations are even more likely to be asked to "invent" law for the future. Lippe believes legal education should be reduced to "no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school." What happened to thinking about what the law should be, rather than just what it is?

5. Lippe's central objection with law school faculties is that they "have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business." But if one believes there is any value to ensuring that law students learn to think about the "ought" and not just the "is" of law, there has to be an emphasis on the part of the faculty to exploring the "ought" in order to be able competently to teach their students how to do so. Law is inherently a normative enterprise within society. True enough, practitioners must learn the mechanics and basic content of law, and for that purpose law schools must maintain a strong emphasis on practice training, but practitioners--good ones--are not simply automatons applying black letter law to uncontested facts. The law is often murky, or just plain bad, and facts are often incomplete and contested. Thinking about what ought to happen in such contexts is an important facet of legal education I fear Lippe's model would stifle into oblivion. In any event, Lippe's suggestion that law faculty scholarship is devoid of practical focus and content suggests that he has not read much of it.

6. Along with his claim that law schools have "have grown more distant from the profession," Lippe goes so far as to claim that law professors hold law firms "in low regard." One solution he proposes is to use "more adjunct faculty who are active practitioners." Has he examined the course offerings at any law schools lately? He's welcome to check out ours at Florida State University, which includes a plethora of practical and skills oriented courses, many taught by our faculty members. I teach, for example, courses on Land Use Regulation, Growth Management, and Environmental Issues in Business Transactions. Hardly "distant from the professsion" or the sign of holding law firms "in low regard." Like many law schools, moreover, we offer numerous courses taught by adjuncts who are leading practitioners and our faculty members routinely invite practitioners from all types of practice settings to guest lecture, speak at forums, and mentor our students. Many of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations--writing for their journals, speaking at conferences, and chairing committees. Lippe is working off a mistaken straw man of what goes on inside most law schools and inside the heads of their faculty members.

I could go on with what is misinformed and off the mark with Lippe's assessment of legal education, but I should give him some credit for identifying the need to respond to the changing landscape of the legal profession (within which I include more than BigLaw and Fortune 50 in-house counsel offices). We must get control of the cost of legal education--it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a "fully functional lawyer," a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty. My problem isn't with those ideals, it's with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe's vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession.

JBR

Governor Mark Sanford faces the music

In a genuinely remarkable piece of American political theater, Governor Mark Sanford of South Carolina admitted that he had not in fact taken a hike on the Appalachian Trail during a five-day absence, but rather conducted an extramarital affair in Argentina. Extensive news coverage abounds, among other places, in The State (Columbia, S.C.), The Washington Post, and The New York Times.

Even more remarkably, Mark Sanford has a theme song. With very few modifications, the lyrics from "Don't Cry for Me Argentina," the climactic song from the Andrew Lloyd Webber/Tim Rice musical, Evita, come very close to describing Governor Sanford's story:

It won't be easy, you'll think it strange
When I try to explain how I feel
that I still need your love after all that I've done

You won't believe me
All you will see is a guv you once knew
Although he's dressed up to the nines
At sixes and sevens with you

I had to let it happen, I had to change
Couldn't stay all my life down at heel
Looking out of the window, staying out of the sun

So I chose freedom
Running around, trying everything new
But nothing impressed me at all
I never expected it to

Chorus:
Don't cry for me Carolina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance

And as for fortune, and as for fame
I never invited them in
Though it seemed to the world they were all I desired

They are illusions
They are not the solutions they promised to be
The answer was here all the time
I love you and hope you love me

Don't cry for me Carolina

Repeat chorus

Have I said too much?
There's nothing more I can think of to say to you.
But all you have to do is look at me to know
That every word is true

Neda ندا : In life apolitical, in death a symbol of resistance

In a death seen around the world, a symbol of Iranian protests

It was hot in the car, so the young woman and her singing instructor got out for a breath of fresh air on a quiet side street not far from the antigovernment protests they had ventured out to attend. A gunshot rang out, and the woman, Neda Agha-Soltan, fell to the ground. “It burned me,” she said before she died.

The bloody video of her death on Saturday, circulated in Iran and around the world, has made Ms. Agha-Soltan, a 26-year-old who relatives said was not political, an instant symbol of the antigovernment movement.

Her death is stirring wide outrage in a society that is infused with the culture of martyrdom . . . .

Neda ندا

This video is as compelling as it is graphic:

In death she is being called Neda ندا, which in Farsi means the voice or the call.

Feudalism Unmodified / Something Blue

Feudalism Unmodified: Discourses on Farms and Firms, 45 Drake L. Rev. 361 (1997) (with Edward S. Adams): The regulation of market structure and industrial organization often restricts firms whose size and scope favor sharp distinctions between labor, management, and capital. The epithet feudalism embodies the fears urging rigid structural regulation. This article examines the regulation of feudalism in its native setting, the farm. This article then studies the law's assault on industrial feudalism: anti-takeover statutes. To advocates of free enterprise, feudalism unmodified is a battle cry. But feudalism unmodified also describes the dismal condition of capitalism and its discontents. Those who would protect small farms and firms lament the failure of structural regulation. Feudalism endures, unmodified.

Something Old, Something New, Something Borrowed, Something Blue, 58 U. Chi. L. Rev. 1527 (1991) (reviewing The Bluebook: A Uniform System of Citation (15th ed. 1991)): The Bluebook has transcended its role as a legal citation manual. As the citation manual for law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial Uniform Citation Code, the Bluebook is a legislative waste dump for pent-up frustrations in citation politics.

Tehran, June 15, 2009

Photo: Ben Curtis/Associated Press

Literary Warrant [43]

McSorley's Old Ale House

• Marilyn A. Brown, Frank Southworth & Andrea Sarzynski, Metropolitan Policy Program, Brookings Institution, Shrinking the Carbon Footprint of Metropolitan America (May 2008)
  
  "The nation’s carbon footprint has a distinct geography not well understood or often discussed. This report quantifies transportation and residential carbon emissions for the 100 largest U.S. metropolitan areas, finding that metro area residents have smaller carbon footprints than the average American, although metro footprints vary widely. Residential density and the availability of public transit are important to understanding carbon footprints, as are the carbon intensity of electricity generation, electricity prices, and weather."—Executive Summary.


• Oli Brown & Alec Crawford, International Institute for Sustainable Development (IISD), Rising Temperatures, Rising Tensions: Climate Change and the Risk of Violent Conflict in the Middle East (2009)
  
  "In a region already considered the world’s most water scarce and where, in many places, demand for water already outstrips supply, climate models are predicting a hotter, drier and less predictable climate. Higher temperatures and less rainfall will reduce the flow of rivers and streams, slow the rate at which aquifers recharge, progressively raise sea levels and make the entire region more arid.
  
  "These changes will have a series of effects, particularly for agriculture and water management. Under moderate temperature increases, for example, some analysts anticipate that the Euphrates River could shrink by 30 per cent and the Jordan River by 80 per cent by the end of the century.
  
  "This report, prepared by an independent Canadian environment and development research institute, seeks to present a neutral analysis of the security threat of climate change in the region over the next 40 years (to 2050), drawn from consultations and extensive interviews with experts from across the region’s political and ethnic divides."—Summary.

Read the rest of this post . . .

• Jean-Marc Burniaux et al., Organisation for Economic Co-operation and Development (OECD), The Economics of Climate Change Mitigation: How to Build the Necessary Global Action in a Cost-Effective Manner (Economics Department Working Papers no. 701) (ECO/WKP(2009)42) (June 5, 2009)
  
  "This paper examines the cost of a range of national, regional and global mitigation policies and the corresponding incentives for countries to participate in ambitious international mitigation actions. The paper illustrates the scope for available instruments to strengthen these incentives and discusses ways to overcome barriers to the development of an international carbon price, based on the quantitative assessment from two global and sectorially-disaggregated CGE models. Key step towards the emergence of a single international carbon price will most likely involve the phasing out of subsidies of fossil fuel consumption and various forms of linking between regional carbon markets, ranging from direct linking of existing emission trading systems to more indirect forms through the use of crediting mechanisms. The paper discusses regulatory issues raised by the expansion of emission trading and crediting schemes as well as the complementary contribution of R&D policies. Finally, the paper emphasises the importance of incorporating deforestation into a global agreement as well as the key role of international transfers, not least to overcome the relatively strong economic incentives in some countries to free ride on other regions mitigation actions."—Abstract.


• Mikhail V. Chester & Arpad Horvath, Department of Civil and Environmental Engineering, University of California, Berkeley, Environmental Assessment of Passenger Transportation Should Include Infrastructure and Supply Chains, Environmental Research Letters, v.4 (doi:10.1088/1748-9326/4/2/024008) (2009)
  
  "To appropriately mitigate environmental impacts from transportation, it is necessary for decision makers to consider the life-cycle energy use and emissions. Most current decision-making relies on analysis at the tailpipe, ignoring vehicle production, infrastructure provision, and fuel production required for support. We present results of a comprehensive life-cycle energy, greenhouse gas emissions, and selected criteria air pollutant emissions inventory for automobiles, buses, trains, and airplanes in the US, including vehicles, infrastructure, fuel production, and supply chains. We find that total life-cycle energy inputs and greenhouse gas emissions contribute an additional 63% for onroad, 155% for rail, and 31% for air systems over vehicle tailpipe operation. Inventorying criteria air pollutants shows that vehicle non-operational components often dominate total emissions. Life-cycle criteria air pollutant emissions are between 1.1 and 800 times larger than vehicle operation. Ranges in passenger occupancy can easily change the relative performance of modes."—Abstract.


• Commission for Environmental Cooperation (CEC), Taking Stock: 2005 North American Pollutant Releases and Transfers (June 10, 2009)
  
  "Taking Stock 2005 presents an overview of the releases and transfers of chemical contaminants from North American industrial sectors in 2005. The report is based primarily on publicly available data reported to the three national pollutant release and transfer registers (PRTRs) in North America:
  
  
  • National Pollutant Release Inventory (NPRI) in Canada;
  
  
  • Registro de Emisiones y Transferencia de Contaminantes (RETC) in Mexico; and
  
  
  • Toxics Release Inventory (TRI) in the United States."—Introduction.


• Liisa Ecola & Thomas Light, RAND Transportation, Space, and Technology, Equity and Congestion Pricing: A Review of the Evidence (Technical Report) (2009)
  
  "This report examines the equity issues associated with congestion pricing. We used published work, supplemented in a few cases with communication with practitioners, as the basis for the analysis. The evidence we reviewed came from two types of sources: evaluations of existing congestion pricing implementations and models of proposed or hypothetical congestion pricing systems. We found work on equity with regard to congestion pricing in two strands of literature: economic and planning. The former is most often concerned with the distribution of costs and benefits that accrue to society, while the latter is generally concerned with social justice aspects of congestion pricing and the potential negative consequences for low-income and other disadvantaged individuals."—Summary.


• Energy Information Administration (EIA), The 2009 Outlook for Hurricane Production Outages in the Gulf of Mexico (Short-Term Energy Outlook Supplement) (June 2009)
  
  "The National Oceanic and Atmospheric Administration (NOAA) predicted in its Atlantic Hurricane Season Outlook released on May 21, 2009 that the Atlantic basin will most likely experience near‐normal activity during the upcoming hurricane season (June 1 – November 30). NOAA projects 9 to 14 named storms will form within the Atlantic Basin over the next 6 months, including 4 to 7 hurricanes, of which 1 to 3 will be intense."—Highlights.


• Florida Division of Emergency Management, Hurricane Awareness Poll: Results from 2008 Post Season and 2009 Preseason Hurricane Preparedness Surveys (May 2009)
  
  "Key findings include:
  
  
  • The majority of Florida’s residents have never actually evacuated.
  
  
  • The majority of respondents both before and after Hurricane Season would opt to remain in their home communities and await rebuilding if their homes were destroyed.
  
  
  • Many of Florida’s residents do not know the location of the shelter nearest to them.
  
  
  • The best way to communicate with residents when their electricity goes out is by radio."—Executive Summary.


• Nigel Purvis, Climate Advisers, The Case for Climate Protection Authority, Opinio Juris (June 12, 2009)
  
  This is the first in a series of blog posts at Opinio Juris discussing climate change regulation in national and international contexts. See the end of Purvis' first post for a list of related posts.


• United Nations Environment Programme (UNEP), From Conflict to Peace Building: The Role of Natural Resources and the Environment (February 2009)
  
  "Environmental factors are rarely, if ever, the sole cause of violent conflict. Ethnicity, adverse economic conditions, low levels of international trade and conflict in neighbouring countries are all significant drivers of violence. However, the exploitation of natural resources and related environmental stresses can be implicated in all phases of the conflict cycle, from contributing to the outbreak and perpetuation of violence to undermining prospects for peace. In addition, the environment can itself fall victim to conflict, as direct and indirect environmental damage, coupled with the collapse of institutions, can lead to environmental risks that threaten people’s health, livelihoods and security."—Executive Summary.


• United States Department of Energy (DOE), National Energy Technology Laboratory (NETL), 2008 NETL Accomplishments (2009)
  
  "The National Energy Technology Laboratory (NETL) has released its annual accomplishments report, highlighting breakthroughs in research and technology development to address the nation’s energy, economic, and environmental challenges."—Press release (June 2, 2009)


• United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Hazard Mitigation Assistance Unified Guidance: Hazard Mitigation Grant Program, Pre-Disaster Mitigation Program, Flood Mitigation Assistance Program, Repetitive Flood Claims Program, Severe Repetitive Loss Program (June 1, 2009)
  
  "The Hazard Mitigation Grant Program (HMGP) may provide funds to States, Territories, Indian Tribal governments, local governments, and eligible private non-profits following a Presidential major disaster declaration. The Pre-Disaster Mitigation (PDM), Flood Mitigation Assistance (FMA), Repetitive Flood Claims (RFC), and Severe Repetitive Loss Pilot (SRL) programs may provide funds annually to States, Territories, Indian Tribal governments, and local governments. While the statutory origins of the programs differ, all share the common goal of reducing the risk of loss of life and property due to natural hazards."


• United States Department of the Interior (DOI), Framework for Geological Carbon Sequestration on Public Land: In Compliance with Section 714 of the Energy Independence and Security Act of 2007 (P.L. 110-140, H.R.6) (Report to Congress) (June 3, 2009)
  
  "A critical issue for evaluating storage capacity is the integrity and effectiveness of geologic formations for sealing carbon dioxide underground, preventing its release into underground sources of drinking water, mineral resources or the atmosphere. The report recommends that candidate sites must have sufficient capacity to accept the volume of carbon dioxide expected for the life of the sequestration project and the geologic structure to ensure long-term containment of the carbon dioxide."—Press release.


• United States Government Accountability Office (GAO), Aviation and Climate Change: Aircraft Emissions Expected to Grow, but Technological and Operational Improvements and Government Policies Can Help Control Emissions (Report to Congressional Committees, GAO-09-554) (June 2009)
  
  "A number of policy options to address aircraft emissions are available to governments and can be part of broader policies to address emissions from many sources including aircraft. Market-based measures can establish a price for emissions and provide incentives to airlines and consumers to reduce emissions. These measures can be preferable to other options because they would generally be more economically efficient. Such measures include a cap-and-trade program, in which government places a limit on emissions from regulated sources, provides them with allowances for emissions, and establishes a market for them to trade emissions allowances with one another, and a tax on emissions. Governments can establish emissions standards for aircraft or engines. In addition, government could increase government research and development to encourage development of low-emissions improvements."—What GAO Found.

Least complicated

Least complicated

Some long ago when we were taught
That for whatever kind of puzzle you got
You just stick the right formula in
A solution for every fool

— Indigo Girls, Least Complicated, Swamp Ophelia (1994)

Yes, there is a connection to law. Read all about it in  The Cardinal Lawyer.

Follow J.C. Redbird on Twitter

»  Adapted from The Cardinal Lawyer  «
Twitter is a lightweight online platform that blends blogging and social networking. Its users "tweet" by answering a simple question: "What are you doing?" All answers are limited to 140 characters — the length of an SMS text message, minus 20 characters. Twitter has become a powerful weapon for marketing consumer goods, documenting brain surgery, and coordinating political protests. When even the New York Times, the grandest of conventional media sources, offers tips on Tweeting, you know that Twitter's time has come. And though predictions and prescriptions do differ, it does seem that Twitter — or something else capturing its blend of social networking, linking, and real-time searching — is here to stay.

Follow J.C. Redbird on Twitter!

My Twitter handle is J.C. Redbird. I would be honored if you would follow my tweets. To make sure that I follow your Twitter account in return, send me a private message inside Twitter, and I will take care to add you to my Twitter reading list.

Εοπίθηκος

I de dager var kjempene på jorden

Again from Recess Appointment, chapter 3 of Iridescence:

I de dager var kjempene på jorden. The land of one's childhood, no matter its physical location, marks the same place on every person's emotional map. In those days there were giants in the earth, and the sons of God came unto the daughters of men. And in turn those daughters bore children who became mighty men of old, men of renown. . . . There the warriors stood taller, whether they swung bats or wore plastic armor beneath their jerseys. The preachers spoke with greater authority, sometimes of heaven but mostly of hell. And above all the daughters of men have no greater beauty than those you first meet in that never-forgotten land. So struck will you be by your discovery, your terrible and thrilling discovery that you want one and all of them at once and forever, that you will spend the balance of your days searching for one to compare with the girls you recall from the founding of the kingdom of giants.

Editor's notes:

1. The phrase I de dager var kjempene på jorden comes from the 1930 Norwegian Bokmål translation of Genesis 6:4.


2. The image shown is that of Milam Park, Clarkston, Georgia.

Manifold destiny

From Recess Appointment, chapter 3 of Iridescence:

No reach back into ancient natural history can resist the temptation of the near emotional future. You will believe in that orgiastic future no matter how badly the recent personal past distorts your view of current global reality. It eluded you then, but that’s no matter — tomorrow you will run faster, stretch out your arms further. And if you are lucky enough to have noticed the trompe-l'œil of your own creation, you will realize this truth: No amount of traversing the ancient and the modern, the personal and the global, will separate fear from desire. At any scale the topology of anxiety and longing dictates an invariable outcome. Such is the manifold destiny of the searching soul. Equal and opposite emotions, one and inseparable, comprise a single surface in the Klein bottle of the human heart in conflict with itself.

Memory and redshift

No less than their sensory counterparts, the waves of personal remembrance obey Doppler's law. The mind in motion never quite perceives what passes before the mind at rest. Emotional recall obeys the forces that bend the peal of a passing bell and warp the color of distant stars. Race toward the past if you will; yesterday recedes faster than your memory can recall. As you reel backward, redshift stretches memory beyond your field of perception, till truth dissipates in spasms of invisible heat. Race instead toward the future, and impatient anticipation crashes against the the invariant pace at which tomorrow arrives. Against that blackness you will see no more than purple tendrils not quite taking full form, the fleeting projections of things yet to come.

Creamskimming and competition

Herewith my latest paper, Creamskimming and Competition:

Creamskimming and Competition

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept.

This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the least expensive and most profitable for the incumbent firm to serve, thereby undercutting the incumbent firm’s ability to provide service throughout its service area.” Moreover, regulatory approaches to this practice should make clear that creamskimming can take place only where a competitive firm proposes to serve only a portion of an incumbent firm’s service area. In other words, when a competitive entrant proposes to serve an incumbent’s entire service area, creamskimming by definition cannot occur.

Seton Hall Law Review symposium

Seton Hall Law Review Symposium

October 30, 2009
Seton Hall Law School
Newark, NJ

Securities Regulation and the Global Economic Crisis: What Does the Future Hold?

CALL FOR PAPERS

The Seton Hall Law Review will be hosting a Symposium on October 30, 2009, at Seton Hall Law School in Newark, NJ, to address the role of securities regulation in the current global financial crisis. Specifically, this event will examine the origins and genesis of the crisis, address the future of securities regulation domestically and internationally, and attempt to anticipate the role of government agencies, self-regulatory organizations, and private market participants in shaping and effectuating regulation. This Symposium will bring together experts from both public and private sectors, as well as from the legal and academic communities, to explain, debate, and assess the challenges and opportunities presented by the current and prospective landscape of global securities regulation.

Persons interested in participating as a speaker and/or in publishing a piece in the special Symposium issue of the Seton Hall Law Review should submit a CV and a 200-word abstract of their presentation to Laura Fant, Symposium Editor, by May 15, 2009. Laura Fant may be reached at (617) 480-7428 or Laura.Fant@student.shu.edu. Prospective speakers or panelists should indicate whether they would be interested in submitting a paper based on their presentation for publication. Contributions are welcome from scholars and practitioners in all disciplines.

Editor's note: See also the announcement posted on Commercial Law.

Literary Warrant [42]

John Ashbery, Moon Glow, 2008 (collage)

The spoon went in
just right,
stirred the coffee,
was removed and lay
on the saucer, silent.

The lost library
books fantasized
about where they'd end up,
not
realizing they already had.
—from John Ashbery, A November, A Worldly Country (New York: Harper Collins, 2007)

• American Society of Civil Engineers (ASCE), 2009 Report Card for America's Infrastructure (March 25, 2009)
  
  "The 2009 Report Card for America’s Infrastructure finds not much has changed since the last edition four years ago. Years of delayed maintenance and lack of modernization have left Americans with an outdated and failing infrastructure that cannot meet our needs."—Preface.


• Benfield UCL Hazard Research Centre, Hazard & Risk Science Review 2008
  
  "The last 12 months has seen two major catastrophes happening within a few weeks of one another. The arrival of Cyclone Nargis in Burma triggered the most lethal natural disaster since the 2004 tsunami, while just a few weeks later, China experienced its most destructive earthquake in more than three decades. Together, these events highlight the fact that natural hazards are continuing to exact ever greater tolls, both in rural and urban settings, and in developing and developed nations alike.
  
  "As we report in Hazard & Risk Science Review 2008, this is a trend that is certain to continue, driven perhaps—in the case of wind-related disasters—by a changing climate, but primarily by rapidly-expanding populations in regions of high vulnerability and exposure, exacerbated by poor preparedness. Here, we present a digest of the latest peer-reviewed papers that address those issues, such as hazard prediction, modelling, and characterisation that, together, aim to diminish vulnerability and exposure and reduce disaster risk. Our aim continues to be to improve industry awareness and understanding of natural catastrophes and the processes that drive them, to limit the number of shocks and surprises arising from hazardous events, and to help drive more informed business decisions on a day-to-day basis."—Author's note.

Read the rest of this post . . .

• Dan Bodansky, Opinio Juris (blog), Human Rights and Climate Change (April 1, 2009)
  
  "The UN Human Rights Council adopted a resolution last week on 'Human Rights and Climate Change,' in follow up to the January report by the Office of the High Commissioner on Human Rights on the Relationship between Climate Change and Human Rights.
  
  "The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights. The resolution notes that 'climate change-related effects have a wide range of implications...for the enjoyment of human rights' and 'affirms' that 'human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.' But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year."


• Clare Breidenich & Daniel Bodansky, University of Georgia School of Law, Measurement, Reporting and Verification in a Post-2012 Climate Agreement (Pew Center on Global Climate Change) (April 2009)
  
  "MRV can serve a wide range of purposes in a new climate agreement. It can provide an important means of tracking parties’ progress individually and collectively toward the Convention’s ultimate objective. The very process of measurement can facilitate parties’ actions by establishing baselines and helping to identify mitigation potentials. The reporting of actions can allow for their recognition internationally. The review or verification of parties’ actions can enhance action through expert advice on opportunities for improvement. MRV could play a particular role in the linkage between developing countries’ action and support for those actions. Finally, credible MRV can strengthen mutual confidence in countries’ actions and in the regime, thereby enabling a stronger collective effort.
  
  "This report considers options for MRV in a new climate agreement. It begins by looking at basic issues in measurement, reporting and verification, and how they are addressed in different international regimes. It then evaluates existing requirements and mechanisms under the UNFCCC and the Kyoto Protocol that are relevant to MRV. Finally, it outlines a range of options for adapting these mechanisms and establishing new ones for purposes of MRV in a new agreement."—Introduction.


• Nicholas Burger et al., RAND Environment, Energy, and Economic Development, Evaluating Options for U.S. Greenhouse-Gas Mitigation Using Multiple Criteria (Occasional Paper) (2009)
  
  "Choosing a set of policy responses to mitigate greenhouse gases (GHGs) responsible for climate change is one of the great challenges that the United States faces in the coming years. Many policy options emphasize overall cost-effectiveness in reducing GHG emissions. In the search for options that are effective and politically feasible, however, other concerns have comparable importance. Mitigating GHGs in practice will require balancing cost-effectiveness and other objectives that reflect the institutional and political realities of passing major federal legislation with widespread impacts on U.S. producers and consumers.
  
  "This paper develops a framework for evaluating GHG mitigation policy in the United States that balances several criteria. It draws on conceptual analysis and examples from U.S. energy policy to motivate an evaluative framework that incorporates a range of views of what constitutes 'good' policy. It should be of interest to stakeholders in the GHG policymaking process and especially to those responsible for crafting U.S. climate policy."—Preface.


• Congressional Budget Office (CBO), The Impact of Ethanol Use on Food Prices and Greenhouse-Gas Emissions (April 2009)
  
  "This Congressional Budget Office (CBO) analysis, which was prepared at the request of Representatives Ron Kind, Rosa DeLauro, and James McGovern, examines the relationship between increasing production of ethanol and rising prices for food. In particular, CBO estimated how much of the rise in food prices between April 2007 and April 2008 was due to an increase in the production of ethanol and how much that increase in prices might raise federal expenditures on food assistance programs. CBO also examined how much the increased use of ethanol might lower emissions of greenhouse gases. In keeping with CBO’s mandate to provide objective, impartial analysis, the report contains no recommendations."—Preface.


• Terry M. Dinan, Senior Advisor, Congressional Budget Office (CBO), The Distributional Consequences of a Cap-and-Trade Program for CO2 Emissions (Testimony before the Subcommittee on Income Security and Family Support Commitee on Ways and Means U.S. House of Representatives) (March 12, 2009)
  
  "One option for reducing emissions in a cost-effective manner is to establish a carefully designed cap-and-trade program. Under such a program, the government would set gradually tightening limits on emissions, issue rights (or allowances) consistent with those limits, and then allow firms to trade the allowances among themselves. The net financial impact of such a program on low- and moderate-income households would depend in large part on how the value of emission allowances was allocated. By itself, a cap-and-trade program would lead to higher prices for energy and energy-intensive goods. Those price increases would impose a larger burden on low- and moderate income households than on higher-income households, relative to either their income or total spending. Lawmakers could choose to offset the price increases experienced by low- and moderate-income households by providing for the sale of some or all of the CO2 emission allowances and using the revenues to compensate such households."


• Environmental Integrity Project, The Calm Before the Storm (April 2009)
  
  "Due in part to the recent economic slowdown and milder-than-usual weather, carbon dioxide (CO2) emissions from U.S. power plants dropped 3.1 percent in 2008, tempering a steady increasing trend in the preceding years, according to a new report from the Environmental Integrity Project (EIP). EIP officials cautioned that the one-year dip is a departure from the recent trends in power plant carbon dioxide emissions, which have risen 0.9 percent since 2003, and 4.5 percent since 1998, according to data from the U.S. Environmental Protection Agency (EPA). Despite the slight overall national improvement in CO2 emissions, six states had increases in power plant emissions of 1 million tons or more from 2007 to 2008: Oklahoma (3.1 million); Iowa (1.8 million); Texas (1.7 million); Nebraska (1.3 million); Illinois (1.1 million) and Washington (1.1 million)."—Press release (April 6, 2009)


• European Environment Agency (EEA), EEA Signals 2009: Key Environmental Issues Facing Europe (1831-2772) (2008)
  
  "Finding, reading and understanding the range of ‘signals’ regarding the health and diversity of our environment is at the heart of what we do. Signals respects the complexity of the underlying science and shows awareness of the uncertainties inherent in all of the issues we address. Our target audience is broad, ranging from students to scientists, policy-makers to farmers and small business people. Signals, which will be published in all 26 EEA languages, takes a story-based approach to help us better communicate with this diverse group of people. The eight stories addressed are not exhaustive but have been selected on the basis of their relevance to the current environmental policy debate in Europe. They address priority issues of climate change, nature and biodiversity, the use of natural resources and health."—What Is Signals.


• Guy Carpenter & Co. Ltd., Man-Made Cats Hit 09 USD7 Billion in 2008 (2009)
  
  "Man-made and technological catastrophes caused around USD7 billion in insured losses last year. This put 2008 losses around 46 percent higher than the annual average of USD4.8 billion, according to data from Swiss Re. Nineteen known events resulted in insured losses of more than USD50 million each, according to publicly available information. These events occurred in 11 countries, with losses ranging from USD80 million to nearly USD2 billion."—Executive Summary.


• Philip J. Klotzbach & William M. Gray, Department of Atmospheric Science, Colorado State University, Extended Range Forecast of Atlantic Seasonal Hurricane and U.S. Landfall Strike Probability for 2009 (April 7, 2009)
  
  "We issue these forecasts to satisfy the curiosity of the general public and to bring attention to the hurricane problem. There is a general interest in knowing what the odds are for an active or inactive season. One must remember that our forecasts are based on the premise that those global oceanic and atmospheric conditions which preceded comparatively active or inactive hurricane seasons in the past provide meaningful information about similar trends in future seasons. This is not always true for individual seasons. It is also important that the reader appreciate that these seasonal forecasts are based on statistical schemes which, owing to their intrinsically probabilistic nature, will fail in some years. Moreover, these forecasts do not specifically predict where within the Atlantic basin these storms will strike. The probability of landfall for any one location along the coast is very low and reflects the fact that, in any one season, most U.S. coastal areas will not feel the effects of a hurricane no matter how active the individual season is."—Why issue extended-range forecasts for seasonal hurricane activity?


• National Research Council of the National Academies, Board on Infrastructure and the Constructed Environment, Sustainable Critical Infrastructure Systems—A Framework for Meeting 21st Century Imperatives (2009)
  
  "For the people of the United States, the 20th century was one of unprecedented population growth, economic development, and improved quality of life. The critical infrastructure systems-water, wastewater, power, transportation, and telecommunications-built in the 20th century have become so much a part of modern life that they are taken for granted. By 2030, 60 million more Americans will expect these systems to deliver essential services. Large segments and components of the nation's critical infrastructure systems are now 50 to 100 years old, and their performance and condition are deteriorating. Improvements are clearly necessary. However, approaching infrastructure renewal by continuing to use the same processes, practices, technologies, and materials that were developed in the 20th century will likely yield the same results: increasing instances of service disruptions, higher operating and repair costs, and the possibility of catastrophic, cascading failures. If the nation is to meet some of the important challenges of the 21st century, a new paradigm for the renewal of critical infrastructure systems is needed. This book discusses the essential components of this new paradigm, and outlines a framework to ensure that ongoing activities, knowledge, and technologies can be aligned and leveraged to help meet multiple national objectives."—Summary.


• National Research Council of the National Academies, Panel on Strategies and Methods for Climate-Related Decisions Support, Informing Decisions in a Changing Climate (2009)
  
  "The report recommends six principles that all agencies should follow in supporting decision makers who are facing the effects of climate change. For example, agencies’ efforts should be driven by the needs of end users in the field, not by scientific research priorities. And agencies should create close ties between the scientists who produce climate change information and the practitioners who use it."—Press release (March 12, 2009)


• National Resources Defense Council (NRDC), Contaminated Coal Waste (March 12, 2009)
  
  "Coal-fired power plants produced more than 126 million tons of contaminated coal waste in 2005, the most recent year for which data is available, according to figures reported to the U.S. Energy Information Administration. And NRDC estimates show that the waste produced in a single year contains nearly 100,000 tons of toxic metals."


• Deborah Paulus-Jagrič, UPDATE: Global Warming: A Comparative Guide to the E.U. and the U.S. and Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol (GlobaLex) (February 2009)
  
  "In this guide, I briefly summarize the UNFCCC and the Kyoto Protocol, and discuss the sources one would use to research them, but I make no claim to originality there. As a comparative guide, it has relatively little to offer, at least thus far. To state the major difference between the E.U. and the U.S. in the simplest way, in the E.U. there are climate change laws to apply (the E.U. has ratified the Kyoto Protocol and takes its commitments very seriously), and in the U.S. there are none, at least at the federal level. When and if the U.S. government chooses to act on climate change, this guide will include its actions; thus it will evolve and become a truly comparative guide. Its current value lies in its compilation of recent information on the important work that U.S. states and cities have initiated to address climate change and, hopefully, to compel the federal government into action."—Introduction.


• Darren Springer & Greg Dierkers, National Governors' Association, An Infrastructure Vision for the 21st Century: Strengthening Our Infrastructure for a Sustainable Future (2009)
  
  "The nation faces a host of infrastructure challenges that are critical to address. These include broad systemic issues of underinvestment, inadequate revenue, and a need to improve planning efforts that affect assets across the board. They also include concerns about reducing our dependence on imported oil, diversifying our nation’s electricity portfolio, and responding to climate change that affect transportation and energy infrastructure in particular. While federal investments expected for 2009 could fund shovel-ready projects in transit, highways, school repair, and other critical areas—helping states put people to work right away on pressing needs—a long-term strategy to address these challenges also is needed."—Executive Summary.


• Swiss Reinsurance Company Ltd., Natural Catastrophes and Man-made Disasters in 2008: North America and Asia Suffer Heavy Losses, sigma, no. 2/2009 (2009)
  
  "In 2008, natural catastrophes and man-made disasters caused 240 500 fatalities and led to economic losses of USD 269 bn.1 The cost to property insurers was USD 52.5 bn, making 2008 one of the costliest catastrophe years in history. The extent of the damage once again revealed the need to introduce improved prevention and post disaster management practices. It also reaffirmed that the lack of insurance cover, particularly in the emerging markets, continues to leave many people vulnerable after a catastrophic event occurs."
  
  "Of the 311 catastrophic events in 2008, 137 were considered natural catastrophes, while the remaining 174 were man-made disasters."—Executive Summary.


• United Nations Educational, Scientific, and Cultural Organization (UNESCO), Water in a Changing World (3rd United Nations World Water Development Report) (2009)
  
  "Important decisions affecting water management are made outside the water sector and are driven by external, largely unpredictable drivers—demography, climate change, the global economy, changing societal values and norms, technological innovation, laws and customs, and financial markets. Many of these external drivers are dynamic and changing at a faster pace. Developments outside the water domain influence water management strategies and policies. Decisions in other sectors and those related to development, growth and livelihoods need to incorporate water as an integral component, including responses to climate change, food and energy challenges and disaster management. The analysis of these issues leads to a set of responses and recommendations for action that incorporate the contribution of water to sustainable development."—Overview of Key Messages.


• United Nations Environment Programme (UNEP), UNEP Year Book: New Science and Developments in Our Changing Environment (2009)
  
  "The UNEP Year Book 2009 presents work in progress on scientific understanding of global environmental change, as well as foresight about possible issues on the horizon. The aim is to raise awareness of the interlinkages among environmental issues that can accelerate the rates of change and threaten human wellbeing.
  
  "The chapters of this Year Book track the same trajectory as our awareness of environmental change. Transformations are inherent to this trajectory and are taking place on many fronts: from industrial agriculture to eco-agriculture; from a wasteful society towards a resource efficient one; and from a triad of competing interests among civil society, the private sector, and governments to a more cooperative model based on mutual benefits."—Introduction.


• United States Department of Energy (DOE), Energy Information Administration, Annual Energy Outlook 2009: With Projections to 2030 (DOE/EIA-0383) (March 2009)
  
  "The projections in AEO2009 look beyond current economic and financial woes and focus on factors that drive U.S. energy markets in the longer term. Key issues highlighted in the AEO2009 include higher but uncertain world oil prices, growing concern about greenhouse gas (GHG) emissions and its impacts on energy investment decisions, the increasing use of renewable fuels, the increasing production of unconventional natural gas, the shift in the transportation fleet to more efficient vehicles, and improved efficiency in end-use appliances. Using a reference case and a broad range of sensitivity cases, AEO2009 illustrates these key energy market trends and explores important areas of uncertainty in the U.S. energy economy. The AEO2009 cases, which were developed before enactment of the American Recovery and Reinvestment Act of 2009 (ARRA2009) in February 2009, reflect laws and policies in effect as of November 2008.
  
  "AEO2009 also includes in-depth discussions on topics of special interest that may affect the energy market outlook, including changes in Federal and State laws and regulations and recent developments in technologies for energy production and consumption. Some of the highlights for selected topics are mentioned in this Executive Summary, but readers interested in other issues or a fuller discussion should look at the Legislation and Regulations and Issues in Focus sections."—Executive Summary.


• United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Hurricane Ike in Texas and Louisiana: Building Performance Observations, Recommendations, and Technical Guidance (Mitigation Assessment Team Report, FEMA P-757) (April 2009)
  
  "In response to Hurricane Ike, the Federal Emergency Management Agency (FEMA) deployed a Mitigation Assessment Team (MAT) to evaluate and assess damage from the hurricane and provide observations, conclusions, and recommendations on the performance of buildings and other structures impacted by wind and flood forces. The MAT included FEMA Headquarters and Regional Office engineers, representatives from other Federal agencies and academia, and experts from the design and construction industry. The conclusions and recommendations of this Report are intended to provide decision-makers with information and technical guidance that can be used to reduce future hurricane damage."—Resource Record Details.


• United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Special Community Disaster Loans Program (Notice of Proposed Rulemaking) (March 30, 2009)
  
  "The Federal Emergency Management Agency (FEMA) proposes to amend its regulations regarding the Special Community Disaster Loans Program to implement loan cancellation provisions for Special Community Disaster Loans provided by FEMA to local governments in the Gulf region following Hurricanes Katrina and Rita. This rule does not propose the automatic cancellation of all Special Community Disaster Loans. This rule proposes procedures and requirements for governments who received Special Community Disaster Loans to apply for cancellation of loan obligations as authorized by the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. The proposed procedures are intended to provide sufficient information to FEMA to determine when cancellation of a Special Community Disaster Loan, in whole or in part, is warranted. This proposed rule would not apply to any loans made under FEMA’s traditional Community Disaster Loan program which is governed under separate regulations."—Summary.


• United States Department of the Interior (DOI), Minerals Management Service (MMS), Survey of Available Data on OCS Resources And Identification of Data Gaps (Report to the Secretary, U.S. Department of the Interior) (OCS Report MMS 2009-015)
  
  "In response to President Obama’s vision for energy independence for our Nation, Secretary of the Interior Ken Salazar announced on February 10, 2009, a four-part strategy for developing a new, comprehensive approach to energy resources of the Outer Continental Shelf (OCS).... The OCS refers to 1.7 billion acres of Federal jurisdiction lands submerged under the ocean seaward of State boundaries, generally beginning 3 geographical miles off the coastline (for most States) and extending for at least 200 nautical miles to the edge of the Exclusive Economic Zone and further as the continental shelf is extended. As the Secretary explained in his announcement, the DOI should establish an orderly process that allows us to make wise decisions based on sound information, in a way that provides States, stakeholders, and affected communities the opportunity to provide input on the future of our offshore areas."—Executive Summary.


• United States Department of Transportation, Federal Highway Administration, Megaregions: Literature Review of the Implications for U.S. Infrastructure Investment and Transportation Planning (FHWA-BAA-HEPP-02-2007) (September 2008)
  
  "In the twenty-first century, the United States faces increasing challenges in terms of economic competitiveness, quality of life, traffic congestion, aging transportation infrastructure, and scarcity of natural resources. These challenges are particularly difficult because they are not confined to traditional geographic or political borders, but arise from the interactions between cities and regions. In order to address these challenges, local, state, regional, and federal actors may be well served by planning for critical infrastructure on a scale larger than has been common in transportation and regional planning history and practice. One potential approach to address these challenges, and take advantages of the opportunities that arise from growing urban agglomerations, is the idea of the 'megaregion.'"—Executive Summary.


• United States Environmental Protection Agency (EPA), Office of the Science Advisor, Council for Regulatory Environmental Modeling, Guidance on the Development, Evaluation, and Application of Environmental Models (EPA/100/K-09/003) (March 2009)
  
  "This guidance recommends best practices to help determine when a model, despite its uncertainties, can be appropriately used to inform a decision. Specifically, it recommends that model developers and users: (a) subject their model to credible, objective peer review; (b) assess the quality of the data they use; (c) corroborate their model by evaluating the degree to which it corresponds to the system being modeled; and (d) perform sensitivity and uncertainty analyses. Sensitivity analysis evaluates the effect of changes in input values or assumptions on a model's results. Uncertainty analysis investigates the effects of lack of knowledge and other potential sources of error in the model (e.g., the “uncertainty” associated with model parameter values). When conducted in combination, sensitivity and uncertainty analysis allow model users to be more informed about the confidence that can be placed in model results. A model’s quality to support a decision becomes better known when information is available to assess these factors."—Executive Summary.


• United States House of Representatives, Energy and Commerce Committee, American Clean Energy and Security Act of 2009 (Discussion Draft)
  
  "Chairman Henry A. Waxman of the Energy and Commerce Committee and Chairman Edward J. Markey of the Energy and Environment Subcommittee released a draft of clean energy legislation that hopes to create jobs, help end U.S. dependence on foreign oil, and combat global warming. The American Clean Energy and Security Act of 2009 (ACES) is a comprehensive approach to America’s energy policy that charts a new course toward a clean energy economy."