Photo of Elaine Spencer

Elaine has a broad range of trial experience in land use and natural resource issues. She has been a leader in defending the forest products industry from lawsuits threatening its economic vitality. She has represented a wide range of property owners in disputes over whether they can use their land. Her success comes from a combination of legal skills, industry knowledge and a strategic ability to claim the high ground in controversial matters early, and to maintain that high ground to achieve the client's objectives.

We all know the federal government is hamstrung by partisan gridlock.  Where once lawmakers recognized that passing legislation required that both parties end up being able to claim success, that no one got everything they wanted, and that progress was never perfect, today there seem to be new rules holding forth:  “I will only ‘compromise’ with you if I get everything I wanted, and I get all the credit.”  “If you have to eat some crow, that makes me look better.”  “I don’t need your help enough to be willing to let you take the credit for what we accomplish.”
Continue Reading Defeat of the Carbon Tax: As Washington Increasingly Mimics the Partisan Gridlock of the “other Washington,” it Risks Losing Progressive Action in the Name of Progressive Principles

Lots of big ideas – think the minimum wage, women’s suffrage, abolition, fair labor standards – take years or decades from when they are first proposed to their final adoption. The fact that it takes a while to bring enough of society around to actually adopt a new idea doesn’t mean it wasn’t a good

Climate change deniers continue to be with us. But the release on June 25 of “Risky Business,” a comprehensive report on the risk to American business and political life from climate change, suggests that the reality and risk of climate change is increasingly clear to intellectual leaders of both parties. The committee that commissioned the report included three former secretaries of the treasury, two of whom served Republican presidents. When cap and trade becomes perceived as a threat to business and the economy, it will have a better chance of generating bipartisan concern.

The core question, of course, is what to do about climate change, once you recognize it’s a problem. Assuming one doesn’t stop with “throw up your hands, go hide under the covers and hope somehow in the morning it will have disappeared like the boogeyman,” the compelling need is to convert from a fossil fuel dependent economy to an economy that both promotes conversion to alternative sources of energy and spurs the development of not-yet-imagined technologies to make life without fossil fuels work.

And the next core question is how do you do that? There, the mantra “think globally, but act locally” probably has a fair amount of credence. There have been in the past, and will need to be in the future, global treaties governing climate change. In the absence of global cooperation, the actions of any one state or nation will be overwhelmed by the greenhouse gas emissions from other countries. China is now the world’s largest emitter of carbon, with India and other parts of the world that are developing a growing middle class fast behind. The United States cannot limit greenhouse gas emissions enough to avoid the worst effects of climate change without the cooperation of the world’s other large and growing economies.

But, one of the persistent arguments of the developing world is that unless and until the United States takes significant action to limit its carbon emissions, they will not compromise the development of their own middle class. The reality is that much of our standard of living has depended on cheap and unrestricted use of fossil fuels, and developing countries very much want to provide their people with the same standard of living that the United States has achieved. In 2012, the United States emitted 17.31 tons of carbon dioxide per person, while China emitted 5.43 tons per person and India emitted 1.39 tons per person. China has a lot more people – but to bring China and the other major emitters to an international solution, the United States will have to make major progress in reducing its per capita emissions.Continue Reading Cap and Trade versus a Carbon Tax: Where is Bill Gates Sr. When We Need Him?

Last week, when the Ninth Circuit denied the petition for rehearing en banc of the decision in Washington Environmental Council v. Bellon, it took what may be the final step to limit the role of courts in the debate over regulation to restrict carbon emissions. Bellon held that environmental plaintiffs do not have standing to sue to compel the Northwest Clean Air Agency (NWCAA) to set stricter standards for greenhouse gas emissions.

In Bellon, the environmental plaintiffs sought to compel the Northwest Clean Air Agency to adopt new RACT (Reasonably Available Control Technology) standards for the five oil refineries in Washington. The district court agreed and ordered NWCAA to determine RACT for the refineries within 26 months. Standing requires that a plaintiff show not just that it has been injured, but also that its injury can be remedied by a decision of the courts. The Ninth Circuit reversed, finding that the plaintiffs had not shown, and could not show, the required causality between their conceded injury from global warming, and any failure by NWCAA to adopt RACT rules, or that a judicial decision would provide them with any remedy for their injury.

The denial of rehearing en banc was supported by an opinion by Judge Milan Smith, joined by Judge Randy Smith, putting the issue succinctly:

Under Lujan [v. Defenders of Wildlife], it was Plaintiffs’ burden to come forward with evidence at the summary judgment stage demonstrating that injunctive relief would: (1) cause the Defendant-agencies to promulgate RACT standards that demand cleaner technology than the oil companies currently use; (2) that the oil companies would comply with these new standards; (3) that the oil companies’ compliance would reduce greenhouse gas emissions; and (4) that these lower emissions would mitigate global climate change in a way that would alleviate Plaintiffs’ alleged injuries.

Continue Reading The Courts Exit the Debate Over Regulation of Greenhouse Gas Emissions