New DePaul Environmental Law Course

Hello Everyone! 

Like many Chicagoans the DePaul College of Law Environmental Law Society hunkered down for the winter.  As our weather moves from bitter cold to snow accumulation we hope you will excuse our lack of blog posts!  However, I am here to break the silence and update our followers about what we have been doing while in winter hibernation.  Specifically, I will explain DePaul’s newest course offering International Environmental Justice and how ELS helped to make it a reality.

Last year, ELS determined that our school’s curriculum lacked environmental law course offerings.  As a group of students concerned about environmental issues, we took it upon ourselves to provide our input to our school’s administrators and faculty.  Our administration was encouraged by our initiative and asked us to take on a larger role in determining what would be the best way to get another class.  From there, we obtained a commitment by a professor to add an additional course to his teaching load and began to have meetings on what subject matter would be the best fit.  The result was International Environmental Justice.  The course description reads as follows:

"This course focuses on legal problems and issues concerning the human right to a safe, healthy and ecologically-balanced environment.  The readings and class discussion focus on (1) how private lawyers can effectively advocate on behalf of indigenous populations who suffer environmental injuries, and (2) how international legal regimes operate to prevent and redress violations of international environmental human rights.”

Although we are only four short weeks into the semester, our class is already beginning to take shape.  We have started by learning about the legal framework and the institutions (both national and international) by which environmental issues are addressed.  Apart from learning about international treaties and reading European Court decisions, our professor has challenged us to come to each class with a fictional “client.”  These fictional clients are then used to put conceptual ideas such as “displacing indigenous populations” into real world scenarios.  For example, just this week discussion of our client’s issues led to a discussion of the legal issues of environmental degradation through real property development and the ensuing procedural issues presented by local, regional and national governments. 

ELS would like to thank Professor Barry Kellman for volunteering to add an additional course to his already busy workload and to DePaul’s administration for allowing us to voice our opinions about what we want out of law school and to help make them a reality! 

ELS Sponsors Career Panel

The DePaul College of Law was treated to an engaging discussion during the lunch hour on October 17^th.  ELS sponsored a moderated career panel featuring attorneys working in the fields of environmental law, conservation, and policy.  Students were joined by Evan McGinley from the Illinois Attorney General’s Office, Stacy Meyers of Openlands, and Steve Kaiser and Gary Steinbauer with the U.S. EPA. The attorneys provided thoughtful comments about what courses, experiences, and skills are valuable in preparing students for careers in environmental law and beyond. Our panelists were kind enough to pose for a photograph with ELS President Brandon Clark following the successful event.

What’s the difference between $0 and $65 million?

Apparently, a bald eagle. Robert Rauschenberg’s painting, Canyon, is ruffling some major feathers in the Art, Environmental, and Tax legal world. Why? Because the art at issue, a sculptural combine, includes a stuffed bald eagle: a bird under federal protection. 

Illena Sonnabend’s heirs inherited Rauschenberg’s Canyon along with the rest of her estate in 2002. In most cases, inheriting a Rauschenberg would equivocate to winning the lottery. However, the problem is that Canyon can never be sold since it contains a stuffed bald eagle, a violation of the country’s 1940 Bald and Golden Eagle Protection Act as well as the 1918 Migratory Bird Treaty Act. The law provides criminal penalties for persons who possess, sell, purchase, barter, transport, import or export any bald eagle—alive or dead—according to the U.S. Fish and Wildlife Service website.

Canyon first caught the attention of the Fish and Wildlife Service agents in 1981, when it reentered the U.S. through customs after a European tour. As a result, Sonnabend applied for and received a special permit to retain possession of the bird carcass mounted on canvas. Later, in 1998, the Sonnabend Gallery encountered new resistance. The Department of Interior officials notified the gallery that it would have to relinquish the carcass to U.S. Fish and Wildlife Service or donate the piece to a nonprofit museum, unless it could prove that the carcass was taken from the wild prior to 1940, when the Bald Eagle Protection Act was enacted.

To settle the matter, Rauschenberg himself swore before a notary-public that the eagle was old enough to be legal, explaining the eagle had belonged to a member of Teddy Roosevelt’s Rough Riders, who had taxidermed the bird prior to 1940. After his death in 1959, the family had tossed the unwanted carcass in the garbage. The artist then came within possession when a friend retrieved it from the trash and offered it to Rauschenberg.

Since federal statutes prohibit any traffic of bald eagles or their remains, the art cannot legally be sold. For this reason, three qualified appraisers, including Christie’s, have valued the unsalable work at “zero” for estate-tax purposes. However, the IRS Art Advisory Panel disagrees and is demanding Sonnabend’s heirs must pay another $29.2 million in taxes, as well as a related penalty of $11.7 million, maintaining that the heirs inaccurately stated the piece’s value. The original IRS estimation contained a suggested valuation of $15 million. But after refusing to pay, the Sonnabend estate received a formal Notice of Deficiency that increased Canyon’s value to $65 million. Ironically, due to the Federal law, this value is entirely hypothetical: normally, market price will determine the value of art, but Sonnabend’s heirs cannot sell Canyon without facing criminal penalties. Yet, the IRS justifies this number, arguing that the painting has potential value on the black market. To put the piece into market perspective, the top price ever paid for a Rauschenberg at auction is $14.6 million, which sold at Sotheby’s in 2008. The heirs are currently contesting the Notice.

The work currently hangs in the 20th-century galleries at the Metropolitan Museum of Art, where it remains on long-term loan. Sonnabend’s original collection, left to her heirs, was valued around $1 billion; they have already sold off about $600 million of art to cover the cost of taxes.

This isn’t the only circumstance in which these statutes have allowed for little to no reasonable excuse. A decade ago, Lawrence M. Small, secretary of Smithsonian Institute, allowed magazines to photograph his collection of Amazonian tribal art, much of which was made of feathers of protected rain-forest birds. The U.S. Fish and Wildlife Service soon began an investigation, which lead to Small pleading guilty to federal misdemeanor violations under the Migratory Bird Treaty Act.

The IRS policy has been unwavering over the years, so it’s certainly possible, however unfair it may seem, that the Sonnabend heirs will have to pay this tax and penalty. Yet, it is circumstances like these in which public policy may demand that the law consider its potential effect on individual lives in order to adjust to a more fair and workable standard.

ELS & Animal Law Groups Help Clean Montrose Beach

Early on the morning of Saturday, September 15th, twelve DePaul Law students -- and one canine helper -- representing ELS and the Student Animal Legal Defense Fund, convened on Chicago's Montrose Beach to participate in the Alliance for the Great Lakes' annual September adopt-a-beach event.  More than 24 man-hours of volunteer service were logged in the effort and altogether 56 lbs. of garbage was cleared from the beach and adjoining nature preserve!

My 1L Summer: ELS, Openlands and Local Food

Hi, I’m Melissa, the ELS treasurer for 2012-2013. I came into DePaul knowing that I wanted to focus on environmental law. Naturally, I joined ELS right away. Throughout the year, I was interested in the variety of topics covered at the meetings and the various service days, but also the avenues in which ELS could help me find a summer internship. Through ELS, I learned about a Chicago Bar Association event that focused on environmental law. This event was where I received a list of environmental organizations throughout Chicago. This was the first time where I saw the name Openlands and I decided to apply for a summer internship. Openlands is a regional conservation organization that focuses on protecting open space and its various benefits throughout the region.

I interned at Openlands throughout the summer after my 1L year and worked on a variety of topics. I was assigned to an issue involving the Clean Water Act and required permits for a mining operation next to a state park. This issue was an interesting mix of applicable law and the public’s perception and participation in environmental issues. I was also assigned to research the effects of a proposed highway in which various alternative routes would pass through important natural areas, including wetlands and grassland bird habitats.

However, one of the most interesting topics I worked on was regarding local food. I helped contribute to local food assessments of various counties in Illinois. I never realized the numerous benefits of buying local food and supporting local food production before this assignment.

Growing local food, and just farmland in general, has numerous beneficial environmental, health, and societal impacts. One important function of farmland is to allow rainwater to filter through the soil and naturally filter out the pollutants. This helps support healthy drinking water because otherwise rainwater can run off into sewer systems and this can eventually taint the drinking water supply if the system overflows.

Supporting local food in your community also helps support the increase in healthier and fresher food. Because the food that is grown locally does not travel hundreds of miles to get to the table, consumers can be assured that local food is fresher and will most likely taste better. In addition, supporting local food production in low-income communities will bring healthy fruits and vegetables into an area that might not have access to such food. These areas that do not have access to a variety of nutritional foods are called “food deserts” and would benefit greatly from a community garden or farmer’s market in the area that supplies local, healthy food.

Along with beneficial environmental and health benefits, supporting local food can also bring about positive societal impacts. Encouraging local food production in an area – through community gardens, farmer’s markets, community-supported agriculture (CSA) programs, or the like – can help strengthen a community. Encouraging local food gives the community a positive platform to rally for, thus encouraging citizens to get involved in their community and working towards the well being of its residents.

For more information about supporting local food production and protecting farmland, check out Openlands website at www.openlands.org.

Fracking Illinois

Hello everyone! My name is Sam and I am the Secretary of DePaul’s Environmental Law Society. I will be one of the contributors for this blog. Don’t fear my Footnotes.¹

I have a strong interest in how human interaction with the environment impacts the health of communities. Thus, I want to post about a pressing environmental health topic that gets a lot of attention nationally,² but needs immediate attention locally.

The issue: regulation of Hydraulic Fracturing (“fracking”) in Illinois. The problem: it doesn’t exist! There are no laws in the Land of Lincoln about fracking. There are proposals and there is legislative activity, but so far, we got nothin’.

“Fracking” in its most basic, is the process of injecting a mixture of water, sand and chemicals deep into the ground to release natural gas from geologic formations. This natural gas can then be captured and used to create energy. Fracking operations are rapidly sweeping across the nation due to low pricing and increased restrictions on conventional coal power plants.³ Industrial giants currently have landmen⁴ surveying the country to find lucrative spots to drill, including Illinois. About half of Illinois is located above the New Albany Shale formation and oil companies are eager to test the state’s geologic potential.

The health scares associated with fracking are dramatic. In 2008, the EPA performed a study to determine the health effects of fracking in Wyoming. The Agency discovered levels of benzene (a known carcinogen) at 246 micrograms per liter. That mark is well above the maximum permitted level of 5 micrograms per liter and a major cause for concern. Additionally, in Pennsylvania, methane gas, ammonia, arsenic, chloromethane, iron, manganese, t-butyl alcohol, and toluene were all discovered in well water surrounding a fracking operation.

If you look only at the potential health effects, strict regulation seems like a no-brainer. However, there are two sides to every story, and like most environmental issues, Big Industry has a tale to tell about job creation. Even President Obama recognizes the “60,000 job” potential of natural gas.⁵ This back-and-forth between community health and economic vitality in down-state Illinois recently resulted in interesting activity in Springfield.

Rep. Naomi D. Jakobsson, D-Urbana, amended a bill which previously had support from both environmental groups and industry. The amendments proposed a two year moratorium on fracking in Illinois. As a result, industry-friendly lawmakers blocked the bill from voting and Illinois remains lawless. Beyond the moratorium, the proposed amendments were a bit extreme. If the bill had passed, only Alaska would have regulated fracking more tightly. Perhaps worried lawmakers were justified. Would this bill not only prevent future jobs for constituents, but force current companies to pack up and ship out of Illinois?

It is clear that fracking is here to stay. The U.S. EPA is involved⁶, but the issues of community health and safety are traditionally left to the States to regulate. Therefore, Illinois needs to step up and speak about the elephant-in-the-room: its lack of laws. Any proposed regulation should not be taken hastily, as the dangers (both health and economic) could be devastating. Take your time Illinois, but please do something!⁷ 

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1 Taking a queue from Bill Simmons of ESPN’s Grantland, I will sporadically add footnotes to my posts. They may not be as witty as his, but hopefully they are better than Bluebook cites.

2 Documentary film lover? Watch this: http://www.imdb.com/title/tt1558250/

3 Are we left with a Hobbesian Choice of coal/Climate Change or natural gas/fracking contamination? But see wind and solar power.

4 Fun fact: Our oil connected former President George W. Bush got his start as a landman in Texas.

5 When did he say that?! 2012 State of the Union, http://www.whitehouse.gov/the-press-office/2012/01/24/remarks-president-state-union-address

6 EPA draft guidance for permitting of hydro-fracturing operations is open for public comment until Aug. 23. Act now!

7 Spin-off Legal Issue: Fracking chemicals as trade-secrets and the resulting “doctor gag rule.” http://www.npr.org/2012/05/17/152268501/pennsylvania-doctors-worry-over-fracking-gag-rule

Hello World!

Now is an exciting time for the DePaul Environmental Law Society! Over the last few years, ELS has been progressively expanding its base within the college of law and the 2012-13 academic year promises to be the organization's tipping point. The officers for the upcoming academic year have several exciting new plans for the organization, including: launching this blog, which will become a vehicle for developing a student written and published newsletter; increased opportunities for community involvement, such as the fall beach clean-up and another, as yet undetermined, fall volunteer day; and, the return of our annual fall environmental law career panel. Other new initiatives are in the works, but are most appropriate to announce closer to the spring semester.

Perhaps the most exciting new development is this blog. New law students are continuously encouraged to hone their writing skills, and for good reason. An attorney's trade-in-stock is words; those who are able to bend the language to their will are more effective advocates for their clients. And, as with any other skill, “practice makes perfect.” Therefore, the ELS leadership is very excited to unveil this blog and announce its grand purpose. Of course, part of the reason for its existence is to aggregate information relevent to ELS members and those interested in environmental law in general, but more than that — and more to the point — it is intended to provide an arena in which new ELS members may develop their skills as writers. 

Beginning in the fall, it is the plan of the ELS leadership to turn the blog over to new members — one small group after another. For a month or so at a time, these small groups — under the supervision of senior ELS members — will write regular posts on developments in environmental law, highlight general interest stories related to environmental issues, advertise upcoming ELS events, report on past ELS events, and generally write, write, write and then write some more! In this way, ELS will benefit from an increased online presence, but more than that, new ELS members will have the opportunity to develop a body of writing that highlights their skills as wordsmiths, while simultaneously sharpening those very same skills.

The ELS leadership is very excited about this new endeavor and we hope you are too. And yet, since this is our shiniest new toy, we aren't yet ready to hand it over to our newest members — call us greedy, but to be perfectly frank, we don't have “newest members” yet anyway. So, for the remainder of the summer and until we get settled into the new school year, we plan to run this blog through the paces ourselves. So please indulge us this wish, and check back often to see what we each have to say. And continue to come back throughout the fall and the entire academic year to see what ELS — and our new members — are up to!