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Another Pruitt Folly:  An EPA Directive in search of a problem to solve 


One might laugh, if the subject wasn’t so serious.  EPA Administrator Pruitt issued a new Agency directive today, entitled “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” together with a memo explaining it.  The objective of the Directive is to restrict the ability of the EPA to settle certain types of law suits, oftentimes where the Agency is in clear violation of a statutory deadline or other legal requirement.  Anyway, here is a link to an op-ed that I wrote about this issue a few years ago and why I think there is no real beef to the controversy.  But I am not writing about the merits of the issue here.

Why do I say that the directive is in search of a problem?  Take a look at the language in the Directive laying out the factual basis of the problem it is supposed to fix.

It has been reported . . . that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.  In some instances, EPA may have taken actions that had the effect of creating Agency priorities and rules outside the normal administrative process.”

“It has been reported?“ “EPA may have taken?”  Wow.  Some careful lawyering to make sure that there is no actual assertion of fact about the issue.  In fact, the entire directive appears to be based on hearsay, i.e. some abstract “reporting” on the issue.

Ok, so if there is no factual basis for the problem, maybe there is at least a theoretical legal problem to solve here?  Hey, we law professors always love theoretical legal problems to solve.  Turns out that the issue addressed by the Directive – the possibility of an agency colluding with the other litigant, exceeding its statutory authority, or agreeing to something that it shouldn’t via a court settlement, is actually addressed by Justice Department regulations.  These regulations are the result of a set of policies initiated under U.S. Attorney General Ed Meese, also referred to as the Meese Memo.  (When I was a junior attorney in the Justice Department’s Environment Division, I actually had to deal with the Meese Memo.)  The Meese Memo sought to address exactly the same perceived problem that is described in the Pruitt Directive and Memorandum.  However, since EPA is represented in any litigation by the Justice Department, all EPA court settlements must be approved by Justice Department authorities.  Therefore, any court settlements are subject to the Meese Memo regulations, which does much the same as the Pruitt directive.  Mmmh.  So, no theoretical legal need for the new Directive either.

I wish I could say that this is amusing.  But I am not amused.

EPA Administrator Pruitt’s new rule repealing the Clean Power Plan


The new rule, initiated by EPA Administrator Pruitt to repeal the Obama Administration Clean Power Plan (CPP), is not a surprise.  But today’s EPA press release, which made official what Pruitt had announced yesterday in Kentucky, is truly disingenuous as to the Administration’s broader objective of bringing back coal jobs.  In the end, the repeal of the CPP will do virtually nothing for the recovery of the coal industry.  It is well-documented that the decline of coal jobs is the direct result of market forces — competition from cheap natural gas (coming from fracking) and automation trends in mining.  These developments have affected the industry for decades already,  Repeal of the CPP will not change that.  Instead, the false “war against coal” rhetoric only distracts from more important issues and serves as a convenient excuse for not doing more for communities adversely affect by the decline of coal .

Some of the most troubling parts of the press release are found in the Agency’s description of the cost and benefits of the CPP repeal.   Under Administrator Pruitt, the Agency has changed how international vs. domestic climate change effects are considered, excluded the co-benefits of public health improvements from the elimination of other pollutants, and changed how energy savings are accounted for.  An op-ed piece by Richard Revesz and Jack Lienke in today’s NY Times does well in exposing these shenanigans.

I found especially galling how the public health co-benefits of reducing coal usage are being dealt with.  These public health benefits come from reducing power plant pollution, such as particulate matters and other substances, that have well-documented adverse health consequences.  In other words, the pollution reductions from the CPP would have helped American citizens.  Where is the “America first” in ignoring that?

In any event, since today’s announcement is just the initiation of a rule-making process, nothing much will change for quite a while.  The repeal has to go through the same regulatory process as the initial promulgation of the CPP rule itself.  And after that, there are bound to be litigation challenges to the repeal, just as opponents to the original CPP regulation (such as Pruitt himself) tied up the CPP’s effectiveness by court challenges.

But there is a silver-lining for the environment in the disingenuousness of Pruitt’s announcement . . . the repeal of the CPP regulation will definitely not accomplish what it has been advertised by this Administration to do — bring back coal as a major source of energy.

Ultimately, the repeal is just a gigantic smoke-screen for delay and obfuscation on the need to take serious policy action on climate change.   In a few years from now, when climate change science will have progressed even further and provided us with yet more confirmation of the causal connection between our changing climate and the link to human-originated greenhouse gas emissions, we’ll look back at this as an important missed opportunity for the US to redirect its economy.

Rock’n Roll San Jose Half Marathon


I had a terrific morning running the San Jose Half-Marathon with my friends Professor Frank Wu (Hastings Law) and Professor Carol Suzuki (U. New Mexico Law).   I came in at 2:15:07, a personal best, just edging out Frank (2:17), who also ran a personal best.  Even though Carol would have been faster than either of us, she decided help pace Frank.

The highlight was seeing a group of my first-year torts students at the corner of Washington and Newhall, closest to Santa Clara University, who had come out to cheer me on (Bekah, JP, Garrett, Osvaldo, Justin, Davis, Hikari, Caitlin, Joyce, Felipe, Alexis and Roosa). There even seemed to be a student who had called in via face-time, though I don’t know who.  What a cheer squad!  Of course I had to stop and take a selfie with them.

Position: Vermont Law School, Clinical Assistant Professor (Deadline: Oct. 27, 2017, South Royalton, VT)

Vermont Law School

Institute for Energy and the Environment


Clinical Assistant Professor Description

September 2017


VERMONT LAW SCHOOL invites applications for a Clinical Assistant Professor position to lead research, create open source resources, and teach in the law school’s new Farm and Energy Initiative, which is a joint project of the Center for Agriculture and Food Systems (CAFS) and the Institute for Energy and the Environment (IEE).   The position is anticipated to begin in January 2018 with the start of the spring semester but later start dates will be considered.


Given the importance of both agriculture and energy production to our economy and the critical need to improve the sustainability of both sectors, this new initiative provides a leading edge leadership opportunity for a highly qualified attorney.  Some of the compelling policy areas this new initiative could address include

  • promoting farms energy self-reliance,
  • solar siting on agricultural land while protecting soil resources,
  • future feasibility of biofuels as an energy resource, including impacts to agricultural production and lifecycle analysis, and
  • the use of biodigestors to manage the reuse of organic waste & generate local energy.




  • A minimum of 2 years of legal experience
  • Clinical teaching experience
  • Experience and interest in mentoring and supervising students
  • A demonstrated commitment to public interest work – a background in energy, agriculture or both
  • Excellent legal analysis, research, and writing
  • High degree of professionalism in all aspects of lawyering
  • Strong interpersonal skills
  • Creativity and flexibility in approaching and solving problems
  • Strong academic credentials
  • An active U.S. bar membership


Vermont Law School is the top-ranked school for environmental law in the country.  Our graduates become attorneys and environmental professionals who work across the country and the globe.  We offer a rich array of environmental courses and a range of degrees including a Masters and LLM in Food and Agriculture Law and Policy and a Masters and LLM in Energy Regulation and Law as well as certificates in the JD program in food and agriculture law and energy law.  More information about our environmental program is available at http://www.vermontlaw.edu/academics/centers-and-programs/environmental-law-center.


Vermont Law School’s mission is to educate lawyers for the community and the world. The faculty believes that its scholarship, teaching and service should be meaningful and relevant to the local, national, and international communities. The law school is dedicated to building a diverse faculty, and it strongly encourages candidates of color, women, veterans, and members of other underrepresented groups to apply. Please submit a cover letter, curriculum vitae, law school transcript, writing sample and names of three references to IEE Director Kevin Jones, Vermont Law School, 164 Chelsea Street, South Royalton, VT 05068.  Electronic applications are strongly preferred and can be submitted to energyclinic@vermontlaw.edu. Materials should be submitted by 5pm October 27, 2017, and clearly marked ” Clinical Assistant Professor for Farm and Energy Initiative,” although submissions received after this time may be considered until the position is filled.

6 Haikus in Honor of the Santa Clara University Environmental Law Society’s Beach Clean-up (September 16, 2017)


These haikus were composed in honor of the Santa Clara Environmental Law Society’s Beach Clean-up Activity a couple of weeks ago. Santa Clara Law Beach Clean-up - September 2017

Natural Bridges
Wonder on the Western sea
Death strikes on the shore

Sea otter carcass
Devon, Mike and Natalie
silently weeping

Ocean waters rise
Robin, Ayla and Laura
murdering the trash

Rubbish in the brier
cigarette butts like locusts
Cynthia unbowed

Litter galore, help!
Josi and Antonia
rush in from abroad

Traffic cone, gas can
Brian and Arielle – score!
Litter defeated.


Tseming (“Whitman”) Yang

Position: Legal Officer P4, United Nations Environment Programme (Deadline: Nov. 5, 2017, Nairobi, Kenya)

This opening for a lawyer at the UNEP in Nairobi is a rare opportunity.


Posting Title:
Job Code Title:
Department/ Office:
United Nations Environment Programme
Duty Station:
Posting Period:
22 September 2017-5 November 2017
Job Opening number:
Staffing Exercise ID:
United Nations Core Values: Integrity, Professionalism, Respect for Diversity
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Special Notice

Appointment against this position is for an initial period of one year and may be subject to extension. Staff members are subject to the authority of the Secretary-General and to assignment by him or her. In this context, all staff are expected to move periodically to new functions in their careers in accordance with established rules and procedures.

For this position, applicants from the following Member States, which are unrepresented or underrepresented in the UN Secretariat as of 31 January 2017, are strongly encouraged to apply: Afghanistan, Andorra, Angola, Antigua and Barbuda, Australia, Bahrain, Belarus, Belize, Brazil, Brunei Darussalam, Cabo Verde, Cambodia, Central African Republic, Chad, China, Comoros, Cyprus, Democratic People’s Republic of Korea, Dominica, Equatorial Guinea, Gabon, Grenada, Guinea-Bissau, Honduras, Indonesia, Islamic Republic of Iran, Iraq, Japan, Kiribati, Kuwait, Lao People’s Democratic Republic, Latvia, Lesotho, Liberia, Libya, Liechtenstein, Luxembourg, Marshall Islands, Federated States of Micronesia, Monaco, Mozambique, Nauru, Norway, Oman, Palau, Papua New Guinea, Poland, Qatar, Russian Federation, Saint Lucia, Saint Vincent and the Grenadines, Sao Tome and Principe, Saudi Arabia, Seychelles, Solomon Islands, South Sudan, Suriname, Syrian Arab Republic, Thailand, Timor-Leste, Tonga, Turkmenistan, Tuvalu, United Arab Emirates, United States of America, Vanuatu, Bolivarian Republic of Venezuela and Vietnam.

The United Nations is Secretariat is committed to achieving 50/50 gender balance in its staff. Female candidates are strongly encouraged to apply for this position.

All applicants are strongly encouraged to apply on-line as soon as possible after the job opening has been posted and well before the deadline stated in the job opening. On-line applications will be acknowledged where an email address has been provided.

If you do not receive an e-mail acknowledgement within 24 hours of submission, your application may not have been received.. If the problem persists, please seek technical assistance through the Inspira “Need Help?” link.

Org. Setting and Reporting

The United Nations Environment Programme (UN Environment) is the leading global environmental authority that sets the global environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system and serves as an authoritative advocate for the global environment. UN Environment’s Law Division is the lead Division charged with carrying out the functions of UN Environment in the field of environmental law, governance and related policy issues, including those related to multilateral environmental agreements (MEAs). To fulfill its mandate, the Division’s work focuses on: leading the international community in the progressive development of environmental law; supporting States in the development and implementation of legal, institutional and policy measures that address emerging and important environmental challenges; facilitating cooperation and coordination among MEAs and between UNEP and those agreements; working with MEA Secretariats to support Parties to the respective MEAs in implementing their treaty obligations; and facilitating policy dialogue among States on issues relating to international environmental law and governance. This position is located in the Law Division of the UN Environment Headquarters in Nairobi, Kenya. Under the supervision of the Head, National Environmental Law Unit, the incumbent is responsible for:


1. Develop legal frameworks and regulatory mechanisms relating to key environmental priorities, including on UN Environment’s climate change sub-programme:
•Collaborate with relevant multilateral agencies responsible for the development of environmental law, including those on climate change and energy, to ensure compliance.
• Develop in collaboration with other UN Environment Divisions and other partners’ normative tools and methodologies.

2. Programme development:
•Identify, assess and monitor relevant priorities, trends, developments and policies relating to environmental law and governance, including those relating to climate change.
•Provide advice to the Division in the form of legal and policy options, briefs and reports on emerging issues.

3. Liaise with UN Environment’s stakeholders and the countries to support global and regional inter-governmental environmental processes, including those on climate change:
•Enhance expertise of national stakeholders in environmental law and governance, including on climate change and energy, and on compliance through capacity building, networking and training;
•Monitor on-going and emerging international processes, identifying potential areas for UN Environment’s strategic interventions and catalyze UN Environment-wide response and actions.

4. Facilitate a series of high-level meetings/fora on the nexus between science and environmental policy, including climate science and climate policy with emphasis on latest findings and negotiations:
•Guide national negotiators in effective participation in international negotiation processes on environmental issues, including climate change and energy;
•Analyze emerging issues related to negotiations on environmental matters, including on climate change and energy and prepare position and policy papers on UN Environment’s approach to specific or emerging issues in the field.

5. Represent UN Environment in policy-making and substantive inter-agency meetings:
•Provide guidance and coordinate the scientific, technical and administrative actions;
•Generate and disseminate reliable information on environmental law and approaches, including on climate change and energy;
•Exchange professional experience with the scientific community, societies and organizations;
•Identify and develop new portfolio of climate change and energy law concepts and project proposals;
•Provide substantive guidance to Governments to help integrate environmental law, including climate and energy law project proposals at the national and international level;
•Advise Governments on emerging issues to enable them identify their needs and requirements.

Perform other related duties as required.


•Professionalism: Knowledge of environmental law and governance, both substantive and procedural. Strong analytical skills and ability to conduct comprehensive legal research on a range of issues, including those of a unique and/or complex nature; proficiency in legal writing and expression and ability to prepare legal briefs, opinions, and a variety of legal instruments and related documents. Discretion and sound judgment in applying legal expertise to sensitive, complex legal issues. Strong negotiating skills and ability to influence others to reach agreement. Ability to work to tight deadlines and handle multiple concurrent projects. Knowledge of contemporary international relations and of the UN system, organization and interrelationships. Shows pride in work and in achievements; demonstrates professional competence and mastery of subject matter; is conscientious and efficient in meeting commitments, observing deadlines and achieving results; is motivated by professional rather than personal concerns; shows persistence when faced with difficult problems or challenges; remains calm in stressful situations. Takes responsibility for incorporating gender perspectives and ensuring the equal participation of women and men in all areas of work.

•Communication: Speaks and writes clearly and effectively; listens to others, correctly interprets messages from others and responds appropriately; asks questions to clarify, and exhibits interest in having two-way communication; tailors language, tone, style and format to match audience; demonstrates openness in sharing information and keeping people informed.

•Teamwork: Works collaboratively with colleagues to achieve organizational goals; solicits input by genuinely valuing others’ ideas and expertise; is willing to learn from others; places team agenda before personal agenda; supports and acts in accordance with final group decision, even when such decisions may not entirely reflect own position; shares credit for team accomplishments and accepts joint responsibility for team shortcomings.

•Client Orientation: Considers all those to whom services are provided to be “clients” and seeks to see things from clients’ point of view; establishes and maintains productive partnerships with clients by gaining their trust and respect; identifies clients’ needs and matches them to appropriate solutions; monitors on-going developments inside and outside the clients’ environment to keep informed and anticipate problems; keeps clients informed of progress or setbacks in projects; meets timeline for delivery of products or services to client.


An advanced university degree (Masters degree or equivalent) in environmental law or related area. A first level university degree in combination with two additional years of qualifying experience may be accepted in lieu of the advanced university degree.

Work Experience

A minimum of seven years of progressively responsible experience in environmental law and governance, including legal analysis, research and writing. Experience in technical assistance in the development and strengthening of national environmental law and strengthening capacity to implement, comply with and enforce environmental laws and multilateral environmental agreements is highly desirable.


English and French are the working languages of the United Nations Secretariat. For the position advertised Fluency in English (both oral and written) is required. Knowledge of other United Nations official language is an asset.


Evaluation of qualified applicants may include an assessment exercise which may be followed by a competency-based interview.

United Nations Considerations

According to article 101, paragraph 3, of the Charter of the United Nations, the paramount consideration in the employment of the staff is the necessity of securing the highest standards of efficiency, competence, and integrity, including but not limited to, respect for international human rights and humanitarian law. Candidates may be subject to screening against these standards, including but not limited to, whether they have committed or are alleged to have committed criminal offences or violations of international human rights law and international humanitarian law.

Due regard will be paid to the importance of recruiting the staff on as wide a geographical basis as possible. The United Nations places no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs. The United Nations Secretariat is a non-smoking environment.

Applicants are urged to follow carefully all instructions available in the online recruitment platform, inspira. For more detailed guidance, applicants may refer to the At-a-Glance on “The Application Process” and the Instructional Manual for the Applicants, which can be accessed by clicking on “Manuals” hyper-link on the upper right side of the inspira account-holder homepage.

The screening and evaluation of applicants will be conducted on the basis of the information submitted in the application according to the evaluation criteria of the job opening and the applicable internal legislations of the United Nations including the Charter of the United Nations, resolutions of the General Assembly, the Staff Regulations and Rules, administrative issuances and guidelines. Applicants must provide complete and accurate information pertaining to their personal profile and qualifications, including but not limited to, their education, work experience, and language skills, according to the instructions provided on inspira. Applicants will be disqualified from consideration if they do not demonstrate in their application that they meet the evaluation criteria of the job opening and the applicable internal legislations of the United Nations. Applicants are solely responsible for providing complete and accurate information at the time of application: no amendment, addition, deletion, revision or modification shall be made to applications that have been submitted. Candidates under serious consideration for selection will be subject to a reference-checking process to verify the information provided in the application.

Job openings advertised on the Careers Portal will be removed at midnight (New York time) on the deadline date.

No Fee


In my Garden: A Confused Tree


Some of my friends know that I am an avid gardener. Over the past several years, I have been transforming both my front and backyard into something more of an mini-orchard/farm.  The farmer in me enjoys the connection to the land, the work that is part of producing food, and the idea of self-sufficiency.  But it’s definitely still a work-in-progress.  My front yard is now a mini-orchard, with the lawn that used to grace it now gone and replaced with wood chips.  (Some of my neighbors probably see it as as something of an eyesore; but I feel good about getting rid of the front lawn, which was purely ornamental and served no useful function (at least not to me) .)

This morning, as I was inspecting my fruit trees  (in my suburban version of “walking the land,” something I used to do when we still lived in Vermont and had 2 acres of land for our house),  I noticed this on one of my Asian Pear  tree.

It appears to be a set of blossoms.  In late September!  After I just harvested a nice crop of pears just a month ago! Obviously, the tree is confused.

Ordinarily, fruit trees require some period (several months) of chill time before they will bloom and fruit again.  However, we’ve had a rather hot summer.   It is rather mysterious.  In June, something similar happened to my blueberry bushes.  One of them also set some blossoms, well after I had already picked all of the ripe berries.  Those few additional berries just ripened recently.  I had attributed that to a late bloom.  But the blooms on the pear tree are a real anomaly.  Very peculiar indeed.