Author: Daniel Ramsey

Prof. David Driesen – The Keystone EIS’ Grudging Acknowledgment of Environmental Impact

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Professor David Driesen teaches at the Syracuse College of Law and at SUNY ESF.  He specializes in environmental law, international environmental law, and constitutional law.  He edited and contributed two chapters to the seminal Economic Thought and U.S. Climate Change Policy, published by MIT Press in 2009.  

This blog post originally appeared on March 7th, 2014, at the Center for Progressive Reform’s blog.  The original post can be found here.  It is reprinted here with the permission of both the author and the original host.

 

The media has reported, erroneously, that the Obama Administration’s environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase’s magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application.

Let me explain. The EIS concedes that the construction project creating the Keystone Pipeline would produce .24 metric tons of carbon dioxide equivalents (MMTCO2E) per year until TransCanada completes the pipeline. It also admits that operation of the pipeline after construction would produce 1.44 MMTCO2E per year, about the emissions of 300,000 passenger vehicles.

Although this is a lot of emissions, the really huge emissions come not from the construction and operation of the pipeline, but from the extraction and use of tar sands oil. The EIS concludes that the tar sands oil transported through the pipeline would produce a whopping 147 to 168 MMTCO2E per year in lifecycle emissions, approximating the annual emissions of more than 30 million cars. The huge emissions associated with tar sands oil has led James Hansen, a leading climate scientist, to conclude that exploiting tar sands oil means “game over” for climate change.

Now, here is where it gets interesting. In spite of the some 500 tons of annual emissions that the EIS concedes comes from the tar sands oil that the Keystone Pipeline would carry, the EIS concludes that this project would produce only 0 to 27.4 MMTCO2E annually. Now the high end of that 0 to 27 estimate is a pretty high number. Indeed, at the high end, the rejection implies a savings of emissions comparable to that of proposed new standards for emissions from trucks. But even this “high end” estimate reduces the estimate of emissions tar sands oil associated with the Keystone by more than 80% from what it might be.

It’s not too surprising that the media has equated this minimization with denying emissions altogether, even though the combined high end estimated emissions from construction, operation, and added tar sands production exceed those of 6 million vehicles. Six million is a lot of cars, but not nearly as many as 30 million. Nor is it too surprising that the media has attributed this disappearing act to corruption, since the contractor that prepared the EIS, Environmental Resources Management (ERM), had Keystone as a client in the past. But there is a logic to this that has escaped media attention.

The logic is this: stopping Keystone’s construction would not necessarily stop the production of all of the oil the pipeline would carry. It is possible that some or even all of that oil would be produced anyway and shipped via other pipelines or rail. ERM, corrupt or not, estimates that a very large percentage would be produced anyway, perhaps all of it. This assumption does not change the concession about emissions from operation or construction, but it radically reduces the estimate of the pipeline’s impact on emissions from tar sands oil exploitation.

Several analysts and financial institutions disagree with ERM, finding that failing to build Keystone would significantly influence tar sands production. And ERM concedes that if no new pipelines are built and prices of oil range from $65 to $75 a barrel, denying this permit would have a big impact on production.

But all of these findings depend on economic analysis, whilst tar sands oil’s future depends, in large, part on political decisionmaking. There was some tacit acknowledgment of this political dimension in the Supplemental EIS, which considered, for the first time in this process, the possibility that citizens concerned about tar sands oil’s impact would succeed in blocking construction of new pipelines to carry tar sands oil altogether. But citizens’ goals go further than that. They want to shut down tar sands production. They argue vehemently against expansion of rail capacity to carry tar sands oil, since rail oil transport poses safety risks greater than those stemming from pipelines. An explosion last summer destroyed the town of Lac Mégantic, Quebec, killing 47 people. And, if it comes to that, environmentalists will oppose shipping tar sands oil by existing pipelines, although that’s a harder issue to win on. In short, it’s possible that stopping Keystone XL would ultimately eliminate the 500 tons of emissions associated with its capacity and add political momentum to stopping production of tar sands oil altogether.

So, what does all of this mean for President Obama? President Obama pledged to disapprove Keystone if it substantially increased greenhouse gas emissions. Even without entering the thicket of considering the pipeline’s impacts on tar sands production, Obama could disapprove the project simply based on the narrow technical ground that emissions associated with the pipeline’s construction and operation are significant. But he should also recognize that the view that construction of a new pipeline would have no impact on production at all seems extreme, and consider that even ERM’s projections suggest the possibility of significant remaining emissions from production.

But Obama is a President, not just an administrator. And he needs to consider this decision in the broader context of how he wants to contribute to shaping the arc of history. That is, he needs to consider this decision in the context of the broader political movement to stop tar sands production altogether in order to reverse the trajectory of ever increasing fossil fuel use and the dire consequences associated with that. Therefore, he should disapprove the Keystone pipeline and do everything in his power to shut down alternatives to it. Even if his leverage over these additional decisions is limited, his disapproval decision gives activists some time to work on efforts to shut down alternative transportation routes and ultimately production.

Nobody, certainly not the technocrats who prepared the EIS, knows whether the Keystone denial would only reduce the emissions that spell game over for climate disruption or constitute the first step in ending them altogether. But Obama needs to be one of the forces moving us toward shutting down a project that would have devastating consequences for America, the project of tar sands production.

 

Professor/Alumni Saturday – Stephen Lentz, L ’02

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Reform with Results: Why Juvenile Justice Policy is succeeding as Education Policy Falters , Part 1 of 2

Stephen Lentz is an Assistant District Attorney in Luzerne County, Pennsylvania and an Adjunct Instructor of Educational Leadership at Marywood University in Scranton.  Following graduation from Syracuse College of Law in 2002, he taught elementary school for nine years before returning to the legal field as a prosecutor in juvenile delinquency proceedings.

Our nation’s juvenile justice system and its public schools share many of the same goals; mainly, they both seek to create capable and productive adult citizens.  However, despite a litany of overlapping interests and constituencies, policy makers in the two fields have spent the last decade following very divergent paths.  In this first of two parts I will describe some of the national policy trends that have dramatically changed the way public schools operate in this country.  In the next entry, I will contrast controversial developments in education with the remarkable reforms that have occurred in the field of juvenile justice.

When I graduated from the College of Law in 2002, we lived in a dramatically different social and political climate from what exists today.  September 11th was still fresh in everyone’s mind, and No Child Left Behind, George Bush’s sweeping and signature education reform law, passed through Congress with broad bi-partisan support.  It was in that environment that I decided to become a teacher and to postpone, and possibly forgo altogether, a career in law.  While my classmates studied for the bar exam, I moved to the South Bronx and spent the summer training to be an elementary school teacher with the New York City Teaching Fellows.

Those were heady days in education reform, and I believe that in 2002 most educators were on board with many of the core ideals behind No Child Left Behind: that children should learn from “highly qualified” teachers, that testing should provide data that drives instruction, and that underperforming schools should be identified and given the support needed to improve.

For three years I taught elementary school in the South Bronx, followed by two years in Philadelphia, and then four years in rural Tennessee.  Across the arc of this teaching experience, I personally observed the bi-partisan policies of 2002 morph into something completely different by the time I left education in 2011.  Whereas narrow testing data was largely used as a curricular guide in 2002, it regrettably had become the primary determinant of student and teacher success by 2011.

For anyone who is not directly involved with K-12 public education, this might not seem like such a bad thing.  After all, most professions do use data extensively to drive both assessments of work performance, as well strategic decision making.  And as I argued before, it does have its place in teaching.  However, the way student testing is now applied to public education differs enormously with virtually all other professions and their use of data.

Virtually every component of public school curricula is now scripted down to the day so that students can prepare for federally required state exams.  When I first started teaching, “drill and grill” test prep was something that we really only did for a few weeks before the spring exams.  As the years went by though, the drill and grill testing climate transformed the schools where I taught.  It was really hard to see welcoming, child friendly places of learning transformed into largely sterile, imagination free centers of constant test preparation.  I was not alone in my feelings about the effects these changes were having on both my students, as well as the profession.  Nearly every teacher and administrator that I worked with criticized, at least privately, the wide-spread reforms that flew in the face of what anyone who has ever spent time in a classroom knew to be good pedagogy.

I believe, and I think many others do as well, that the purpose of public school in an industrialized democracy is to create productive, educated adults who are able to participate meaningfully in our society.  Our current educational policies are having the opposite effect.  Even if we assume for a moment that it is developmentally appropriate for eight year olds to sit for two to three hours at time for multiple days in a row to take paper-based, written exams, how can we possibly argue that students who struggle within this system are being adequately prepared to become confident and capable adults later on?

By not taking a more holistic view of the many ways that students both struggle and succeed at both school and life, we have created a climate where more students than ever feel that they are not good at what they have been told is the end all and be all of success in our country.  The way our public schools now narrowly define success for both students and teachers is dangerous.  While it may raise student academic standards as measured by testing (more on that in a later post), it only does so at the expense of hampering students who struggle within that system.  It leaves them psychologically damaged and without truly useful skills for the world they will face once they leave school.

It is also important to point out that the laws that created this testing climate.  George W. Bush’s No Child Left Behind and Barack Obama’s Race to the Top apply only to public schools; private schools are basically free to do whatever they want.  The fact that so many politicians send their own children to private schools, where they are not drilled and grilled all year, but are instead exposed to robust curricular offerings that are taught and assessed in a more nuanced manner, really demonstrates that creating capable, confident students is not the end goal of their policies.  If it was, our public school policies would look a lot more like those of private schools.

After nine years of teaching under increasingly dysfunctional policies, I decided to take the bar exam and return to the legal profession.  I was fortunate enough to obtain a clerkship with a senior juvenile delinquency judge in New Jersey, and it was there that I learned first hand about the sweeping reforms and success stories that were taking place nationally in juvenile justice.  In my next piece, I will describe how the juvenile justice system has used a more balanced approach to data to create truly-evidence based programs that benefit not only youthful offenders and their victims, but also our society as a whole.

 

 

Syracuse College of Law Professor Kevin Noble Maillard: Racially Profiled in Palm Beach – Excerpts

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Syracuse Law Professor Kevin Noble Maillard authored the following article, featured as original content for The Atlantic Magazine on July 23, 2013.  The full article can be accessed here.

 

Race is America’s Voldemort: That-Which-Must-Not-Be-Named. Even when discrimination’s role in an event is obvious, there has to be another reason. It’s not about race, it’s about class. It’s about safety. It’s about line dancing. But we are arguably experiencing the greatest racial tensions since the 1960’s, Barack or not.

The most prominent racial issue dividing America today is racial profiling. Trayvon, Stop-and-Frisk, Obama’s Beer Summit, and Arizona’s Show-Me-Your-Papers law are all about acting on racial presumptions.

Three years ago, on a balmy summer night in Palm Beach, I went for a midnight bike ride. Earlier that day, I presented a paper at a law professor conference at the Breakers Hotel. The whole day and early evening was crammed with intense intellectual schmoozing, so I was glad to have some solitary time to explore the long, narrow island. I hopped on my rented beach bike and headed south and over a bridge.

***

Suddenly I am blinded by a profusion of oncoming lights, accompanied by a siren, crossing against traffic into my lane on the two-lane road. Reacting quickly, I squeeze left and right brakes in addition to steering the bike sharply to the right. All together, it is perfect choreography for an overbar face-plant. I spill onto the blacktop.

I skid a little in front of my bike, scraping my elbows, wrists, and forearms on the road. Blood, but not too much. My childhood comes back to me in that odd mix of pain and nausea I felt from bike accidents in fifth grade.

***

The first policeman steps out of the car. “Where are you headed?” I tell him I’m on a bike ride. “Why so late?” I say I like it late. “What are you doing here?” I tell him I’m a law professor attending a conference at The Breakers.

At this point, I’m still thinking about my lonely, abandoned doll of a bike on the ground. Then the second policeman approaches. “We’ve had some robberies here.”

***

The first policeman asks for my ID. He asks for my name and address–clearly printed on the card, next to my picture that looked exactly like me–and my university affiliation.

Both men retreat into the car with my ID to run it though an interminable, rotary-dial background check system. It takes no fewer than 15 minutes. I’m alone with my thoughts, which are mostly questions. I try not to move, and attempt rationalization. Perhaps the burglary announcement was coincidental. I had multiple bike violations, and night cyclists are rare. There must be a logical reason for getting stopped. Other people must have gotten stopped like this.

The first policeman comes back with my ID and tells me I’m free to go. I’m mulling over this incident, and so I cross back over the bridge and decide to do a full loop of the island and think.

I’m on my bike for only a few minutes before another high pitched siren ringtone tells me to stop cycling. Again. This time there are two police cars.

***

Americans love to say “it’s not about race.” Unless there is a cross burning and people wearing “I’m racist” t-shirts, it has to be about something else. Complaining minorities, so the refrain goes, have chips on their shoulders.

Nothing violent happened. But this incident showed me something about bias and perception. Though it’s common to hear race described as just one “factor” in profiling, it’s a factor that seems to outweigh all others: age, education, class, occupation, and just plain common sense–remember, rental bike. It’s utterly exasperating to realize that how hard you work, how much money you have, where you went to school, who your friends are mean nothing at crucial times. The values of colorblindness and merit–which conservatives, including black conservatives, rely on in other race-based debates, for example those about affirmative action–wouldn’t even save Clarence Thomas on the street in these moments: Cabs will pass, police will stop, and as we painfully know, neighbors will shoot.

 

Kevin Noble Maillard is a law professor at Syracuse University.  Teaching courses in Family Law, Wills and Trusts, and Social Deviance and the Law, he is a frequent writer for the NY Times and appears on MSNBC.  You can follow him on Twitter:  @noblemaillard