During the past ten years America has endured devastating earthquakes, a hurricane that indelibly ravaged one of its most beloved cities, and a 200-million-gallon crude oil spill. And with aging infrastructures, a rapidly growing population, and global warming, disasters will likely prove even more common during the next ten years.

The law plays a central role in every stage of a disaster’s lifecycle: from preparedness and risk management to compensation, mitigation, and rebuilding. Consequently, the unique legal issues that arise before, during, and after catastrophic disasters—what is now commonly referred to as disaster law—is attracting attention from both academia and practitioners.

How Law Schools are Teaching Disaster Law

There are some common elements that appear in many disaster law classes. The Stafford Act, which created the system in which a presidential declaration of disaster triggers the Federal Emergency Management Agency (FEMA) into action, is a common topic. The constitutional issues that arise during disaster such as 14^th amendment takings are also widely-taught, as are the relevant working of the various administrative bodies involved in disaster response such as the EPA. Aside from some of these more common disaster law topics, however, disaster law classes are as different as the professors who teach them.

At the University of Seattle, School of Law, Professor Cliff Villa starts his disaster law class with perhaps the most practical approach taken by any school. Professor Villa has his students create a disaster preparedness kit: a collection of the various systemic and material supplies any law firm needs in the case of a catastrophic disaster. The class then surveys the various laws and policies lawyers are often called on to utilize with advising clients affected by disasters, with an emphasis on Hurricane Katrina and the federal government’s response. Unlike many other programs which primarily focus on disaster law’s overarching policy issues, Professor Villa stresses the practical realities that lawyers can face when their firms are directly impacted by disaster, and, more importantly, when their clients are affected by disaster.

At Loyola, Professor Rob Verchick employs an innovative methodology. In addition to more general disaster law topics such as various constitutional and environmental issues, Professor Verchick has his students role-play in various local governmental positions. Students take on the role of Mayor and various legal advisers, and are presented with a surprise disaster to deal with. Students must come up with legal answers on the fly in a high-stress environment—much like lawyers responding to real disasters.

The University of Washington DC, David Clarke School of Law disaster law course offers students an illuminating contrast by considering how other nations and various international organizations deal with disaster. But what makes this school’s program truly unique is its clinical focus: students spend their spring semester fulfilling a “service week component.” The class travels to different locales across America to work with various disaster support organizations. During the 2010 year, the class went to Biloxi, Mississippi to work with the Mississippi Center for Justice, a non-profit that was instrumental both in aiding Katrina victims, and more recently, victims of the BP oil spill. Students provided legal aid to Katrina victims struggling with housing, discrimination, and recovery issues, and legal aid to BP victims dealing with claims processing. Every year the class also aids in rebuilding efforts in residential areas Katrina destroyed.

Disaster law practice

An education in disaster law can benefit a lawyer in at least three ways: 1) providing a lawyer with the ability to construct disaster plans within his or her own law firm, 2) potentially opening up a small, but relevant, niche area of legal practice, and 3) aiding lawyers practicing in the myriad legal fields that are implicated in catastrophic disaster.

As far as actual disaster law jobs, the field does not easily lend itself to the classic law firm model. Being an “expert” in disaster law would mean being an expert in every practice area that is impacted by disaster—in other words almost all practice areas. But a firm that is large enough to have the resources that a specialized practice group in disaster law would require faces a quantity problem: it is hard to find enough business to support the expenses of a large practice group in the, hopefully for the rest of us, long lulls between disasters. Similar workload problems challenge a solo or smaller firm specializing in one narrow field of disaster law.

Yet some lawyers have made the private firm model work for disaster law by specializing in one of the few narrow fields where a consistent client base is sustainable. FEMA Law Associates (FLA) is one such practice. FLA represents organizations attempting to navigate FEMA’s legal maze of disaster recovery reimbursement. The firm represents a variety of clients including government entities, medical facilities, and non-profits. These cases have huge stakes, and they are complex—FLA has cases outstanding from Katrina, a full six years after the storm. But the challenge of developing a bona-fide disaster law practice as a niche is also evident: the firm must cover a large geographical area to
create a sustainable client base, over 30 states, and it employs only two attorneys.

It is important to note that while becoming a disaster lawyer may not be feasible for everyone, familiarity with disaster law can benefit virtually any modern lawyer. The field is quickly becoming omnipresent at the margins of virtually every other legal practice area. For an example, knowing something about the procedures for getting government recovery aid under the Stafford Act can help lawyers advising clients in any geographical area hit by disaster. Disaster law can also be an incredible benefit to attorneys who deal heavily in land use planning or virtually any facet of insurance. Some other practice areas where lawyers can clearly benefit from some familiarity with disaster law include:

• Municipal regulation;
• Wetlands law;
• Bankruptcy;
• Tax;
• Counsel to construction and consulting firms;
• Landlord Tenant; and
• Municipal state law.

Disaster law has clearly become an essential element of the legal system. Although not a mainstay in legal education, academia is recognizing the growing importance of disaster law, and courses are finally becoming more common place. The recent publication of a standardized disaster law text will hopefully remove some of the difficulties some law schools have faced in trying to get a disaster law course off the ground.

Any sort of robust climate change legislation at the federal level has become a political non-starter for the time being. After a string of failed cap and trade bills, and the House’s recent decision to strip the EPA of any potential power to regulate CO2 emissions, the federal response is to be decided another day.[1]

Some states have attempted to fill this legislative void, most notably, the state of California. In addition to California representative Lois Capp’s progressive bill aimed at mitigating Co2 emissions, the state has led the foray into climate change legislation.[2] California has passed resolutions, executive orders, and–the action with the most teeth–Assembly Bill 32.

Assembly Bill 32, formerly known as the Global Warming Solutions Act of 2006 (“AB 32”), was one of former Governor Schwarzenegger’s self-described greatest achievements of his administration. The legislation is an enormous realization, calling for California’s Air Resources Board (the “Board”) to implement broad-reaching regulations to fight greenhouse gas emissions. Many commentators had previously believed that once AB 32 was passed, the promulgation of the regulations  would be the easy part. Unfortunately, this turned out to be wishful thinking. AB 32 has been met with myriad roadblocks, culminating in a recent decision in California’s Superior Court, Associated Irritated Residents v. CARB, which raises questions about when, if ever, the bill will have any practical effect.[3]

Associated Irritated Residents was brought by the Center on Race, Poverty and the Environment. The plaintiffs’ alleged that the Board’s regulatory implementation of AB32, which included a cap and trade scheme, violated California law. The plaintiff’s claims made several administrative law arguments, including allegations that the Board 1) failed to adequately study alternatives, 2) failed to respond to comments, and 3) passed the regulations in a generally deficient manner.  The judge that wrote the Associated Irritated Residents opinion, Judge Goldsmith, agreed with the plaintiffs, holding that the Board sought “to create a fait accompli by premature establishment of a cap-and-trade program before alternative [sic] can be exposed to public comment and properly evaluated.”

Associated Irritated Residents is critical because it creates a relatively strict procedural hurdle for California’s Board. For example, Judge Goldsmith held that the Board insufficiently considered alternatives, but, according to the administrative record, the Board had considered at least five alternatives. In fact, the Board’s analysis of one alternative spanned over ten pages. Similarly, the Board’s response to comments was held to be inadequate even though many responses went out. Although the court cites policy reasons for requiring strict compliance, this seems a rigid application of process requirements–especially in light of the relatively liberal deference courts typically give agency decisions. That the Board’s actions were inadequate is clear, what the Board has to do to survive court going forward–less so.

Associated Irritated Resident’s import for California, and the rest of the nation, is still unclear. Many commentators suggest that this procedural burden is a slight hindrance, and that in hindsight, this case will be seen as a success for AB 32. These scholars reason that the plaintiffs’ challenges to the Board’s substantive bases for its regulations–which are essential to AB 32′s success–were rejected by the court, and that the claims upheld are nothing but procedural tactics that will delay the inevitable.[4]

This seems a logical reading of the case. Notably, Judge Goldsmith held that the California legislature intended to delegate significant authority to the Board to develop measures to achieve “AB 32′s multiple substantive goals,” and that the court therefore would apply an arbitrary and capricious standard. The first section of the opinion affirmed that the Board’s overall plan survived challenge given the agency’s broad “quasi legislative” authority and its “wide latitude” to regulate.

However, the process-attack on the Board should not be simply ignored. Associated Irritated Residents unyielding approach indicates that the road to effective climate change could be littered with successful procedural challenges before agencies get it right. If an agency is unable to promulgate rules without excessive studies and alternative analysis, the federal government may well be in the climate change arena before California’s efforts get off the ground.

—–Joe Regalia is the Online Content/Technology Editor for MJEAL.  He can be reached at regaliaj@umich.edu.

Logging companies commonly build a series of culverts and ditches to divert storm water and sediments away from the dirt transport roads the companies use for log transport. These logging companies rarely obtain any sort of permit, even though the Clean Water Act (“CWA”) requires companies that artificially introduce pollutants into water ways to obtain a permit. CWA-regulated pollutants include a variety of substances, even natural sediments such as those found in storm runoff–these pollutants actually have very real effects on ecosystems when artificially introduced into the wrong aquatic environments.

For three and a half decades the EPA, which enforces the CWA, has allowed these loggers to divert storm water, and the accompanying mass of sediment, without triggering the CWA’s labyrinthine permitting requirements. The EPA has historically avoided any legal backlash via a  regulation known as the Silvicultural rule[1] which exempts categories of activities from the CWA’s permitting requirements. Although a storm water runoff exemption might seem a small concession, this rule is part of a historical cessation of forest regulations to the states. According to many scholars, the EPA’s “respect” for state sovereignty has had devastating impacts on the environment. Recently, the 9th Circuit pushed back on the EPA’s liberal treatment of state forests by holding that the Silvicultural rule could no longer be the EPA’s safe harbor, forcing the EPA to get involved with environmental regulation in state forests, at least when it comes to artificial storm runoff.

Early last year, in Northwest Environmental Center v. Brown, 640 F.3d 1063 (9th Cir. 2011), an environmental group brought claims against the state of Oregon and several lumber companies alleging violations of the CWA. The plaintiff claimed that the companies were violating the CWA by diverting storm water and sediment from logging roads into rivers and streams, and thus creating an un-permitted point source of pollution.

At first blush, the law seems to clearly favor the environmental group’s position. The CWA requires permitting for point sources that pollute waterways, and the clear language of the statute seems to unambiguously encompass artificially controlled runoff.[2]However, the defendants would appear to be within the safe harbor of the “Silvicultural” rule.In fact, for 35 years, the EPA has left regulating forest runoff to the states, using the Silvicultural rule to define roads like those at issue in Northwest as an unregulated non-point sources.

A brief understanding of the Silvicultural rule’s rocky history is needed to understand the current debate. The first version of the rule was struck down by the D.C. District Court as beyond the EPA’s statutory authority.[3]The court held that the power to exempt point source discharges,categorically, was beyond the authority statutorily granted to the agency. The court looked to the CWA, finding that the statutory language and legislative record foreclosed categorical exceptions under even the great deference afforded agency interpretations: the EPA must require permits for anything that meets the definition of a point source pollutant.

While the district court case was pending appeal with the D.C. Circuit, the EPA enacted a revised rule that narrowed the exception to only those situations in which the runoff is “natural.” In practice, this meant thatif the water came from a natural event such as rain it was still exempt even if it was artificially channeled, but, if an individual caused the water to flow in the first place, the Silvicultural rule would not apply.[4]In the EPA’s view, under the case law and the CWA’s legislative history,not every “ditch” should be classified as a regulated point source.[5]The D.C. Circuit ended up affirming the district court’s holding regarding the original Silvicultural rule, but it declined to address the revised rule. [6]

The Northwest court considered the revised version of the Silvicultural rule. Unfortunately for the loggers, the court found the revisions similarly uncompelling, holding that once runoff is artificially channeled, it becomes a point source incapable of exemption under the CWA. However, the court stopped short of invalidating the revised rule, instead, the court interpreted the EPA’s use of the language “natural runoff” to mean that the runoff’s course must be natural as well–thus, as soon as the runoff is artificially channeled it is no longer “natural.”The court admitted that this is clearly not what the EPA intended, especially in light of the agency’s 35 year history of avoiding this type of regulation. But, the court held that allowing the EPA to exempt artificially channeled runoff under the revised rule was as contrary to law as doing so under the original version:”[t]he definition [of point source] in no way depends on … whether the pollutant arrives as the result of controlled water used by a person or through natural runoff.”

Perhaps most prominently, Northwest’s holding can be seen as a pushback on the historically broad powers the EPA wields. Courts generally give agencies wide discretion in carrying out the details of their delegated duties, and this case might signal a trend of EPA constraint. More specifically, how much control and discretion the EPA has over permitting, and should have, is a highly contentious issue. Starkly reversing a 35-year practice, with potentially enormous impacts, is a bold judicial pronouncement regardless of the grounds.

This case is also important because of the enormous costs faced by both the government and private companies, as well as the environmental stakes. Under Northwest‘s holding, a plethora of private and public entities would have to procure CWA permits anytime water is artificially diverted. This could be an enormous burden.On the other hand, the deleterious effects of artificially diverted runoff are not mere conjecture or rumor mongering: it is in fact a well-documented threat to our environment.[7]

Finally, one other factor that the Supreme Court might consider is a federalism issue. Historically, the states have had a robust role in regulating their forests and waterways. In fact, state forests are one of the last resources the federal government has been careful to only indirectly regulate through statutes such as the CWA and the Endangered Species Act.[8]Arguably, if Northwest is upheld, the federal government will be taking a much more direct hand in forest management. This is likely why the application for Northwest’s certiori was accompanied by amici supporting review from 26 states, including Michigan.

There are other potential administrative law challenges to be made to the case which might be successful, and the applications for certirori explore these in detail. For example, the petitioners argue that the Silvicultural rule should not be subject to challenge because the CWA requires rule challenges within a time period long passed. Northwest quickly dismissed this argument on the grounds that the published rule was ambiguous as to the channeling issue, but there is significant room for argument.

Although the Supreme Court has not yet granted certitori, neither have they denied it. In fact, the Court recently issued an order requesting the Solicitor General to opine on whether review should be granted. Considering that half of the states have submitted amici in support of review, there is a significant possibility that the Court will be hearing this case.

—–Joe Regalia is the Online Content/Technology Editor for MJEAL.  He can be reached at regaliaj@umich.edu.