ergo:environmental news

September, 2011

Going to ABA SEER Meeting?

Great! Join Indiana Law environmental law students, faculty, and alumni Oct. 14, 4:30 - 6 p.m., at Marriott's Skybox for an informal reception.

In this Issue

Greetings from the Law School

Robert Fischman A new semester brings fresh excitement to campus and another update from the Maurer School of Law's environmental law program. This edition recounts some of the interesting activities at the law school and accomplishments of our community.

I'm particularly pleased to welcome Dan Cole to the law faculty. You can read about his work in this newsletter, but I would like to add, on a more personal note, that I've known and admired Dan for many years. As an interdisciplinary scholar, he fits right in with the tradition of environmental law and policy at IU. I know the students will share my delight in his sense of humor as well.

I have bittersweet feelings about the departure of Carolyn Waldron, whom the students and I will miss terribly. She worked tirelessly to connect them with many worthwhile pro bono projects and jobs. But I know Carolyn will continue her fine work and maintain her IU connections in her new position as regional director of the Land Trust Alliance.

The tragic, sudden death of one of our great joint degree graduates, Dennis Long, JD/MSES'98, hit me hard. While the entire law school feels the loss, I have a special place in my heart for a brilliant student who returned as an outstanding colleague on the faculty.

The big event highlights from last year were the animal migration conservation workshop and the Sustainability Themester. The workshop continued our tradition of bringing together a group of natural scientists, social scientists, law scholars, and practitioners to work together on interdisciplinary problems. In the spirit of our prior meetings on ecological integrity and on information gaps, the 2010 workshop produced an impressive symposium of articles that significantly advances the literature. It was our good fortune to conduct the workshop during the campus' semester-long theme of sustainability. Eminent ecologists John Terborgh and David Wilcove contributed to our workshop while also speaking to groups on campus for the Themester. The law school is pleased to continue its strong track record of contributing to IU's efforts at sustainability.

While our Conservation Law Clinic is best known for the legal matters it handles for NGO clients, my greatest pleasure comes from working with the CLC attorneys as colleagues on teaching and research projects. All three attorneys participated in the animal migration workshop. And Bill Weeks, JD'79, the CLC executive director, collaborated with me on an innovative seminar last spring where our students contributed to a six-state study of the adaptability of conservation easements to climate change. The students and I thoroughly enjoyed working with Bill, one of the nation's leading experts on conservation easements.

Finally, this update covers some recent accomplishments for which I am proud. Environmental law legend Jim Barnes continued to innovate in teaching and service, and garner much-deserved honors. Conservation Law Center attorney and Maurer alumnus, Jeff Hyman, JD'03, received recognition for his service and litigation skills, and our environmental law moot court team placed in the semi-finals.

If you have thoughts about the items covered in this update, I'd be happy to hear from you.

All the best for a productive autumn,

Robert Fischman
Professor of Law and Harry T. Ice Faculty Fellow,
Professor of Public and Environmental Affairs (adjunct)

Cole joins Indiana Law faculty, receives NSF grant

Daniel H. Cole, a distinguished environmental law scholar and professor with expertise in law and economics, joined the Maurer School of Law as a Professor of Law on August 1. Cole has also been named Professor at IU's School of Public and Environmental Affairs (SPEA) in Bloomington and will continue to serve as a member of the university's Workshop in Political Theory and Policy Analysis. Previously, Cole was the Bruce R. Townsend Professor of Law at the Indiana University School of Law — Indianapolis.

Cole recently received a $1.2 million award from the National Science Foundation. He will be the co-principal investigator on a project titled "Institutional Dynamics of Adaptation to Climate Change: Longitudinal Analysis of Snowmelt-Dependent Agricultural Systems." As the legal scholar in the group, which includes both physical and social sciences, Cole will focus on the formal legal rules and informal social norms for allocating water in Colorado, New Mexico, and Kenya.

Cole describes his appointment in Bloomington as "a dream job in a great place. The opportunity to work with students and faculty in both schools, and to continue my contributions to the Workshop, is both humbling and exciting." At the Law School, Cole is teaching climate law and policy in the fall of 2011.

Cole has been an affiliated faculty member of the Workshop for more than a decade, and has enjoyed the interdisciplinary nature of its work. Professor Elinor Ostrom, the 2009 Nobel Laureate in Economic Sciences, has worked closely with Cole through the Workshop. The two scholars recently finished co-editing a book titled Property in Land and Other Resources, which will be published by the Lincoln Institute of Land Policy in December 2011.

Ostrom applauds Cole's decision to join the Indiana Law and SPEA faculties. "I am delighted that Professor Dan Cole has joined the Bloomington Maurer School of Law and SPEA," she said. "Dan is a great colleague whose interests cross many disciplines. It will be great for our students in the Law School, SPEA, Political Science, and Biology who are interested in how diverse property rights affect the use (or overuse) of resources. Given his interest in global climate change, he will be offering courses of very general interest across the Bloomington campus. We are very fortunate to have Dan joining us."

"Dan Cole brings an added dimension to Indiana Law," said Dean Robel. "His expertise not only in environmental law, but also in its political and economic underpinnings, will build on the School's reputation in this field. And Dan's acclaim as an outstanding teacher will bring much to the student experience."

A graduate of Occidental College with a master's degree from the University of Chicago, Cole attended the Northwestern School of Law of Lewis and Clark College, where he earned a JD cum laude. He has also earned JSM and JSD degrees from Stanford University. A prolific author, Cole had published four scholarly articles before he graduated from Lewis and Clark. Throughout his career, he has published six books and more than 40 articles and essays. A recent book, Pollution and Property: Comparing Ownership Institutions for Environmental Protection, has been translated into Chinese.

Cole describes his new appointment as bittersweet. "Everyone has been enormously supportive during my 20 years at IU Indianapolis," he observed. "The faculty is brilliant, and the school's focus on student-centered legal education is outstanding. I like to think that I am not moving away from Indianapolis, but instead moving toward Bloomington."

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Waldron named Midwest director, Land Trust Alliance

The former director of Indiana Law's environmental law program has accepted a position with the Land Trust Alliance.

Carolyn Waldron joined the Alliance on August 4 after serving for two years as the Law School's environmental law program director. While at IU, she led development of a new vision and direction for building a comprehensive and dynamic law and policy education program, which included work with Indiana land trusts to explore state funding options for conservation.

"I am excited to welcome Carolyn to our exceptional Midwest team and look forward to your connecting with her regarding your land trust initiatives," said Erin M. Heskett, the Alliance's national services director in an internal message.

Waldron comes to the Alliance with over 25 years of experience at the state, regional and national levels in natural resources conservation and advocacy. As vice president of the National Wildlife Federation, she led NWF's Southeast region and national wetlands conservation policy program.

Waldron has also worked for environmental consulting firms, including ICF Incorporated in Fairfax, Virginia. She has served on the board of directors of several non-profit organizations and is an adjunct professor with the Indiana University School of Public and Environmental Affairs, where she graduated with an MPA in Environmental Policy and Policy Analysis. She also holds an AB in Environmental Studies and Fine Arts from Indiana University.

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Hyman named Hoosier Environmental Council Litigator of the Year

Conservation Law Center Staff Attorney Jeffrey B. Hyman, JD'03, was named the Hoosier Environmental Council Litigator of the Year in 2010 for his talents and dedication, especially in regard to his role as lead attorney in the IKEC v. Citizens Groups case. This honor is bestowed to one person per year by Indiana's largest environmental organization.

The IKEC v. Citizens Groups case was filed by the Indiana - Kentucky Electric Corporation against three Indiana environmental organizations in an attempt to attack and overturn a 2005 decision by the Indiana Court of Appeals that non-profit corporations and other organizations can rely on the doctrine of "associational standing" to challenge actions of state agencies. Led by Hyman, the CLC and Clinic interns obtained a dismissal of IKEC's suit in the Marion County Superior Court in October of 2010. IKEC subsequently filed an appeal in the Indiana Court of Appeals. Hyman and the CLC successfully defended their win: In August 2011, the Court of Appeals affirmed the trial court in a published opinion that reaffirms Indiana's acceptance of the "associational standing" doctrine.

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Indiana Law hosts Animal migration conservation workshop

The Maurer School of Law hosted a workshop on animal migration conservation in October 2010.

"From the spectacular flights of Canada geese to a lizard trying to cross a road, animal migration has practical conservation ramifications," workshop director Prof. Robert Fischman explained. "The workshop brought together an interdisciplinary group of experts to discuss their work across specializations."

Papers presented at the workshop were published in a special symposium issue of Lewis & Clark Law School's Environmental Law.

In an introductory essay, Fischman pointed out that "the extinction prevention focus of natural resources policy diverts attention from important issues of ecological integrity and adaptation to climate change. Animal migration conservation serves as a bridge from the imperiled species problem to the more spatially and temporally difficult problems surrounding climate change adaptation."

The workshop and related articles arose from a two-year program coordinated at Indiana University. A group of biologists, social scientists, and lawyers started meeting monthly to discuss the interdisciplinary problems of animal migration conservation. "We began in 2009 with a series of seminars in which we would invite a scholar to share research and help us relate it to some broader aspect of migration policy," Fischman said. After a year of seminars, most of the participants had developed ideas for papers. In addition, many of the program's guest researchers were interested in advancing the program's goal of a comprehensive, interdisciplinary treatment of animal migration conservation. The workshop was convened to improve the papers and foster cross-disciplinary discourse.

"The articles printed in the Environmental Law symposium represent the collective encouragement and criticism from the workshop, seminars, and countless conversations reacting to comments, assertions, and assumptions," Fischman said. In addition to the article authors, Professors David Wilcove of Princeton University and John Terborgh of Duke University contributed their ideas to the workshop.

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Conservation Law Center completes productive year

Seven Indiana Law students completed internships at the school's Conservation Law Center during the spring semester. Their work covered a wide range of projects, including the law of conservation easements, the Endangered Species Act, non-profit law, oil and gas law, water quality, drainage law, and the doctrine of associational standing. Highlights included the completion of a model conservation easement for use and reference by Indiana land trusts, the CLC's role in securing a re-initiation of U.S. Fish and Wildlife Service consultation on construction that affects the endangered Indiana bat, and the ruling of the Indiana Court of Appeals unanimously upholding a trial court order in favor of the Conservation Law Center's clients on the issue of associational standing.

"This year's workload presented a wide range of opportunities for our interns," said W. William Weeks, JD'79, adjunct professor of law and the Center's director. "It was a busy and productive year."

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Law School sponsors noted scholars and policy-makers

Three scholars and policy-makers in the environmental arena visited Indiana Law recently.

John Fitzgerald, JD'77, director of policy for the International Society for Conservation Biology (SCB) visited IU in September 2010 to discuss the Society's public policy priorities. While in Bloomington, he served as practitioner-in-residence at the Law School. The Society is the leading organization of conservation biologists and regularly develops position statements and works with policy makers to improve conservation.

Fitzgerald's lecture coincided with the conclusion of Indiana University's "Themester," a program of the College of Arts and Sciences to foster the vigorous exchange of ideas across the full spectrum of thought and expression consistent with its mission of providing a liberal education and the principle of academic freedom. The theme for the fall of 2010 was sustainability.

In November, the Law School co-sponsored a lecture by noted environmentalist and man of letters Wendell Berry, who visited IU to deliver the Patten Lecture. One of our country's preeminent philosophers of place, a leading advocate for environmental stewardship, and a fierce critic of agribusiness, he first came to literary notice as a poet in the 1960s. Since then, Berry has written numerous books of poetry, nonfiction works, and novels.

Eric Freyfogle, Max L. Rowe Professor at the University of Illinois College of Law, visited the Law School in October 2010. The title of his lecture was "What Is Good Land Use?" The talk was sponsored by the school's Environmental Law Society.

Since 2007, Fitzgerald has been the policy director for SCB, a global association of nearly 14,000 conservation professionals. In that position he has helped them build a policy program that empowers scientific and other conservation experts to work effectively with policy makers.

Over the course of his career Fitzgerald has worked with conservation groups, think tanks, whistleblowers and governments to evaluate strategies and secure improvements in federal and international law and policy in natural resource conservation, anti-corruption measures, international development and socially and environmentally responsible investing. In recent years, for example, he has helped groups work with Rep. Pelosi and Senators Leahy, Biden, Lugar and others to improve the "Pelosi Amendment" and other U.S. environmental and governance standards for multilateral development banks.

As chief counsel at Defenders of Wildlife for ten years he was a leader in the Endangered Species Coalition. He lobbied and coordinated litigation to improve the protection of endangered and sensitive species in domestic and international law. He prepared and coordinated the lawsuits that ended U.S. agencies' assistance in building the Three Gorges Dam in China and required listing decisions for the original "Teddy's Bear" and hundreds of other "candidates" for listing under the Endangered Species Act (ESA). He drafted the original Dolphin-Safe tuna labeling law, helped strengthen U.S. oil spill laws and the sanctions available against nations undermining international conservation agreements. He helped initiate several reforms and facilitated key listings under the Convention on Trade in Endangered Species and helped negotiate the Convention on Biological Diversity, protecting elements of it from attempts to weaken it by the first Bush Administration.

Fitzgerald served as a legislative aide and subcommittee counsel in the House of Representatives for over five years contributing to the development of "Superfund," energy conservation and renewable energy policies and other initiatives.

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Conservation easements subject of Maurer seminar

Conservation of private land in a changing climate was the subject of a new seminar offered in the spring of 2011 at the Maurer School of Law.

"Nonprofit land trusts and government agencies increasingly rely on easements to achieve private land conservation," said course instructor Robert Fischman. "But climate change and associated landscape changes may significantly alter the composition, ecological function, and economic utility of current protected areas. Such change may affect how existing easements meet their conservation goals."

Fischman explained that the course is organized as a collaborative effort among the Nature Conservancy, the Land Trust Alliance, and six academic institutions. Students researched regional case studies in California, Colorado, Indiana, New York, South Carolina, and Wisconsin, conducted through graduate seminars in spring 2011. Participating universities included the University of Denver, Indiana University, Stanford University, State University of New York at Buffalo, University of South Carolina, and University of Wisconsin-Madison. Graduate students in law, social sciences, natural sciences, and planning participated in the seminars and engaged with land trusts and government agencies on this important conservation issue.

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Environmental Law Society team finishes in top 9 in Pace competition

Eric Spengler, JD/MPA 11, Dave LeBeau, JD'12, and Rachael Steller, JD'12, advanced to the semifinals in the 23rd Annual National Environmental Law Moot Court Competition hosted by Pace Law School in February. More than 250 competitors from 77 law schools competed in the national event. The team finished in the top nine schools during the semifinals on February 26.

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Student's analysis of bill earns praise from lndiana lawmakers

Liz Baldwin, JD/MPA'11, completed an analysis of Senate Bill 346, which is pending before the Indiana General Assembly. She was the lead witness at hearing before the Senate Environment Committee. According to Prof. James Barnes, "a number of the committee members acknowledged the help that IU had provided to the committee and expressed their appreciation."

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