Environmental Law Prof Blog

Class 5 Typhoon Heads to China

Lest we believe that North America is the only continent blessed with extreme weather events, here is Planet Ark's report on Saomai, which is a Class 5 typhoon that made landfall on Thursday Early reports of deaths from typhoon :

BEIJING - More than 1.3 million Chinese have fled their homes in the path of a super typhoon, the strongest to threaten the country in 50 years, as it churned relentlessly towards the southeast coast on Thursday.   

Saomai, one of three storms to have hit East Asia in the past few days, has already dumped heavy rain on Taiwan and was just hours from an expected landfall between Hong Kong and Shanghai, just south of the booming city of Wenzhou in Zhejiang province.  Storm tracker Tropical Storm Risk (www.tropicalstormrisk.com) graded Saomai a category five "super" typhoon -- its highest category. Chinese state media said it was the most powerful storm system to threaten the country since August 1956, when a typhoon hit Zhejiang, triggering a tsunami that killed more than 3,000. "Some meteorologists said that the typhoon might grow stronger," the official Xinhua news agency said, adding that it could be fuelled by remnants of the weakening, west-headed tropical storm Bopha. "Saomai is packing winds of 216 km per hour (134 mph) and has outpaced forecasts," Xinhua quoted Li Yuzhu, head of the Zhejiang provincial observatory, as saying. The centre of Saomai was 120 km (75 miles) southeast of Wenzhou at 0600 GMT and was less than 100 km from the nearest coastline, moving northwest at 20 kph.  

Wenzhou residents were reinforcing windows and doors against the storm and stockpiling drinking water and food, state television said. Wenzhou airport had closed and hundreds of passengers were stranded because of cancelled flights, one airport manager said. "We don't know when we will open again," the manager, surnamed Zhou, told Reuters by telephone. "The wind is only fitful but rain is really heavy here." Wenzhou, once a prosperous foreign treaty port and now a manufacturing centre, has a central population of 1.3 million, but there are 7.4 million in the greater Wenzhou area.  Xinhua reported that Zhejiang had already evacuated 760,000 people, with another 569,000 people involved in the neighbouring province of Fujian, as heavy rain, strong winds and a high tide hit the area. Schools, theatres and stadiums had been opened as shelters for the displaced, a Wenzhou official said, adding that factories, shops and offices had been ordered to stop all activities "unrelated to battling the typhoon". Officials in Wenzhou's Cangnan county resorted to television, Internet, text messaging and even two satellite phones to alert residents about Saomai. They also prepared 30 gongs, a traditional instrument in ancient China to warn people of disasters, the local government said on its Web site (www.cncn.gov.cn). Much of south China has been repeatedly battered by typhoons and tropical storms this year. Hundreds have been killed by rainstorms, mudslides and floods. Tropical storm Bilis killed more than 600 in China last month and typhoon Prapiroon killed about 80 last week. Tropical storm Bopha fizzled to the south of Taiwan this week and another veered towards the east of Japan. Typhoons and tropical storms are common each year in Taiwan, southeast China and the Philippines between July and October.

Environmental Law Case Summaries

Findlaw summaries:

U.S. 8th Circuit Court of Appeals

Noe v. Henderson (08/07/06 - No. 05-3244)
The federal Migratory Bird Treaty Act (MBTA), 16 U.S.C. sections 703-712, and federal regulations promulgated thereunder, do not preempt Arkansas regulations governing activities involving captive-reared mallard ducks.
http://caselaw.lp.findlaw.com/data2/circs/8th/053244p.pdf

Atl. Research Corp. v. US (08/11/06 - No. 05-3152)
A private party which voluntarily undertakes a cleanup for which it may be held liable, thus barring it from contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 113, may pursue an action for direct recovery or contribution under section 107, against another liable party.
http://caselaw.lp.findlaw.com/data2/circs/8th/053152p.pdf

U.S. 9th Circuit Court of Appeals

Sarei v. Rio Tinto, PLC (08/07/06 - No. 02-56256, 02-56390)
Dismissal of an Alien Tort Claims Act (ATCA) action brought by plaintiffs, residents of Papua New Guinea, against defendant-mining corporation claiming numerous violations of international law is reversed in part where the district court erred in dismissing all of the plaintiffs’ claims as presenting nonjusticiable political questions, and in dismissing the plaintiffs’ racial discrimination claim under the act of state doctrine.
http://caselaw.lp.findlaw.com/data2/circs/9th/0256256p.pdf

N. California River Watch v. City of Healdsburg (08/10/06 - No. 04-15442)
A judgment in favor of an environmental group in litigation under the Clean Water Act (CWA) challenging a city's discharge of sewage from its waste treatment plant into a body of water is affirmed where the body of water at issue was subject to the CWA since it and its wetlands possessed a "significant nexus" to navigable waters, and neither a waste treatment system nor an excavation operation exception applied to the discharges.
http://caselaw.lp.findlaw.com/data2/circs/9th/0415442p.pdf

Earth Island Inst. v. Ruthenbeck (08/10/06 - No. 05-16975)
In an appeal arising from a judgment enjoining Forest Service regulations governing review of decisions implementing forest plans, the district court's invalidation of 36 C.F.R. section 215.12(f) and a nationwide injunction against its enforcement is affirmed, but the judgment and injunction is remanded to be vacated with respect to the remaining regulations for lack of a controversy ripe for review.
http://caselaw.lp.findlaw.com/data2/circs/9th/0516975p.pdf

U.S. District of Columbia Circuit Court of Appeals

State of Nevada v. Dep't of Energy (08/08/06 - No. 04-1309)
Nevada's petition for review of a Final Environmental Impact Statement (FEIS) for a repository for nuclear waste and a portion of the Record of Decision (ROD) the Department of Energy issued governing the transportation of nuclear waste from the production sources to the repository location is denied where some of the state's claims were unripe for review and the remaining claims were without merit.
http://caselaw.lp.findlaw.com/data2/circs/dc/041309a.pdf

U.S. Court of Appeals for the Federal Circuit

John R. Sand & Gravel Co. v. US (08/09/06 - No. 05-5033)
A decision finding that the U.S. was not liable to plaintiff under the Fifth Amendment to the Constitution for the alleged taking of its leasehold interest in certain land is vacated where plaintiff's takings claim accrued not later than February of 1994, it did not file its complaint until over six years later, and thus, the claim was barred by the statute of limitations and the Court of Federal Claims lacked jurisdiction to consider it.
http://caselaw.lp.findlaw.com/data2/circs/fed/055033p.pdf

The Science of Global Warming: Oops, There Goes Another Ice Sheet....

 

Science has published a study by Chen indicating that the Greenland ice sheet is melting and sliding faster than previously thought -- and the rate may be accelerating.  Chen measured Greenland's ice sheet mass with NASA's Gravity Recovery and Climate Experiment (GRACE) satellite data between April 2002 and November 2005.  The ice melt rate had tripled compared to the rate other scientists had calculated from data collected by Earth-observing satellites between 1997 and 2003.  As Science explained:

Something ominous may be happening beneath Greenland's vast ice sheet. For nearly 50 years, the world's second largest ice cap has inched inexorably downhill toward the ocean, but at a stable rate. Now, the sheet seems to be melting and sliding seaward much faster, and the rate seems to be accelerating--a condition that could eventually endanger coastal populations and affect Earth's climate.

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When glaciers begin to melt, water works its way down to the bottom of the ice. There it lubricates the glacier, which will pick up its downhill pace. Why worry? Greenland holds about 10% of the world's ice, so if it melts completely--though an unlikely prospect--it would raise global sea level about 6.5 meters. That's enough to flood all of the planet's coastal cities and displace billions of people.

House Committee Plays Dogpile on BP

MSNBC reports that the House Resources Committee will undertake an investigation of BP's decision to shut down production at its Prudhoe Bay field -- questioning whether the shutdown was a "market strategy" to manipulate the oil market.

In a scathing letter sent to Lord Browne, BP chief executive, on Friday, Joe Barton, the powerful chairman of the House energy committee, suggests the Alaska shutdown could be part of a wider strategy by BP to influence the market, particularly in light of recent allegations by US regulators that the company engaged in illegal trading in the propane gas market. The company has denied those allegations.

Mr Barton this week said he would hold a September 7 hearing to examine BP's management of severe corrosion in its oil transit lines. In his letter, Mr Barton says evidence of BP's "chronic neglect" of the pipeline, and the subsequent damage that the shutdown has imposed on American consumers and the US economy is "not excusable".                   

Although Mr Barton, a Texan who is seen traditionally as a staunch defender of the oil industry, has not indicated whether he will call on Lord Browne to testify, the seriousness of the shutdown at a time when Congress wants to be seen as responsive to high petrol prices means that either the BP chief or another senior BP executive will probably have to face Mr Barton's wrath personally.

The lawmaker is understood to be incensed particularly by the shutdown because staff at the energy committee received reassurances from BP just a few months ago that a March oil spill, the result of a corroded pipeline, was "an anomaly".

"Following on the heels of the BP refinery disaster that killed 15 people in Texas City in 2005, and the oil spill . . . this latest incident once again calls into question BP's commitment to safety, reliability, and the responsible stewardship of America's energy resources," Mr Barton said.          

BP said it would assist the committee in its inquiry. The letter represents the latest sign that pressure is growing on the company in the US capital.

Apart from Mr Barton's committee, BP is under investigation by the Department of Justice, Department of Transportation and the Environmental Protection Agency. The probes and heightened criticism by lawmakers fly in the face of attempts by BP to craft carefully its image in the US as a responsible and eco-friendly oil company, in contrast to US oil giants.

Separately, BP said it would make a decision later in the day on whether to close the western portion of the Prudhoe Bay field after the transportation department found it was not necessary.

Pipeline May Have Been Corroded by Bacteria

Link: Bacteria Likely Cause of Pipeline Snafu.  AP reports that BP suspects its pipelines leaked crude onto the tundra because oil-eatting bacteria produce an acid that corrodes the pipeline.

"That's our primary suspect at this moment. We'll know when we remove the pipe and have a good look at it," Craig Wiggs, a North Slope oil field manager, said on Friday as he led visitors on a tour of the Prudhoe Bay operations, a 333-square mile puzzle of pipelines and oil processing stations several miles from the bleak shores of the Arctic Ocean.

Early tests show that oil-eating bacteria may have caused the corrosion that caused the shutdown of much of the operation that supplies 8 percent of the nation's daily dose of oil.

Excrement from the microbe colonies inside the pipes produces an acid that eats through carbon steel designed to withstand temperatures that dip to 60 degrees below zero and oil that exits the ground at 160 degrees.

Telltale holes detected during ultrasound tests were most likely made by bacteria, rather than water, Wiggs said.

Sludge buildup on the inner walls of the pipe shelters the bacteria from anti-microbial fluids that oil companies are supposed to pour into the North Slope's zig-zagging network of pipeline 250 miles inside the rim of the Arctic Circle.

"That's what happens when you don't send cleaning pigs through," said Lois Epstein, who sits on a federal advisory committee for the Office of Pipeline Safety. Cleaning pigs are bullet-shaped scrapers released into the pipeline to slough off sludge and other solids.

A 210-gallon spill in one of the pipelines leading directly to the trans-Alaska pipeline led BP to announce earlier this week that it was shutting down its 400,000 barrel-a-day operation at Prudhoe Bay. The company was still deciding on Friday whether it could manage to keep half the field open.

Since then, the oil giant has been peppered with questions over why it hadn't detected the corrosion leading to this spill and another one in March. The spring spill ranks as the North Slope's largest, with up to 267,000 gallons leaked.

"None of this should have been a surprise to anyone related to the oil industry. It's made up of a lot of sophisticated people and the technology of internal corrosion is well-known throughout the industry," said Rick Kuprewicz, president of Accufact Inc., a pipeline energy consulting firm, based in Redmond, Wash.

BP workers with longtime history in the oil industry said they regretted the leaks that led to the shutdown.

"The fundamental objective of the oil and gas production operation is to keep the oil and gas inside the pipe and when we fail to do that it's a blow to those of us who are responsible for operating the field," said Prudhoe Bay field manager Kemp Copeland.

Bacteria can hitch a ride into the pipeline in the cold salt water that is sucked from the nearby Beaufort Sea and injected into the ground to coax the field's dwindling supply of oil up to the surface.

Oil, gas and water all exit the permafrost together and are separated out at flow stations scattered throughout the North Slope. In addition to seawater, the fresh water and natural gas are pumped back down to help maintain the underground pressure that pushes the hot oil to wellheads, which from a distance resemble red Christmas trees.

Microbes can enter any groundwater that is exposed to air before flowing back into the layer of gravel and sandstone 9,000 feet beneath the spongy tundra.

More and more water has come up from the ground as production rates have fallen from a 1989 high of 1.5 million barrels per day to 400,000 barrels before the shutdown. The water was most likely siphoned off before oil reached the rusted section of pipeline, but BP is looking into the possibility that some got by, according to Copeland.

"As the field has declined the water sitting underneath the oil has increased," Copeland said. "The ratio of water to oil coming out of the ground is higher."

The damaged transit pipelines are about 30 years old and sit above ground in wind-blown snow for most of the year, but Kuprewicz said neither factor should have been a problem.

"Just because pipe steel is old, doesn't mean that the useful life of the pipe is used up," he said. "Technically, pipeline steel doesn't age unless you're not paying attention."

The British oil giant runs and owns a 26 percent portion of Prudhoe Bay. ConocoPhillips and Exxon Mobil complete the triumverate with each owning a 36-percent share. Six smaller companies share the other 2 percent.

Of the 25 billion barrels of oil discovered in Prudhoe Bay in the late 1960s, more than 10 billion have flowed 800 miles south across three glacier-laced mountain ranges and more than 500 rivers, the Yukon included, to the port of Valdez. Three billion more barrels are thought to be recoverable.

"I find it incredible that fields of this magnitude would be shut down for this long," Kuprewicz said. "As engineers, there are various fixes to get by on without the nuclear option."

Mercury Boomerang

What goes around, comes around: recycled mercury exported from the US is returning in the form of drifting air pollution -- undermining our efforts to eliminate mercury from the environment.  CT mercury article 

Tons of toxic mercury from U.S. recycling programs are funneled each year to loosely regulated industries in developing countries, where much of the hazardous metal is released into the atmosphere.  Scientists say some of that air pollution can drift back to this country and contaminate lakes and rivers, undercutting aggressive efforts to keep mercury out of the environment.  The federal government estimates that U.S. firms exported at least 276 tons of mercury last year. It moves overseas through a little-known network of purifiers and brokers that operates without government oversight and faces few questions about what happens to the silvery metal once it is sold.  Environmental regulators acknowledge they know more about used motor oil and scrap tires than they do about the mercury trade, in part because it is considered a commodity and isn't subject to the same handling and tracking laws as hazardous waste.  But as policymakers become more aware of the dangers of mercury exposure, particularly for young children and women of childbearing age, they are focusing more attention on curbing sources of mercury pollution.

Last month, U.S. Sen. Barack Obama (D-Ill.) introduced legislation that would bar American mercury exports.  "This is a problem that is impacted by things happening all over the world," Obama said in a recent interview. "But we can make an enormous difference."  Combined with a European Union proposal to block mercury exports, the U.S. effort could shrink global supplies of the metal and drive up the cost enough to encourage alternatives, Obama said. 

The number of U.S. companies that use mercury in industrial processes or products is declining, a trend driven by concerns that once the metal gets into the atmosphere it can pose serious threats to public health.  Mercury pollution that falls into oceans, lakes and rivers is converted into a neurotoxin that becomes more dangerous as it moves up the food chain from fish to people. The federal government estimated last year that 410,000 babies are born each year at risk for mercury poisoning because of high levels in their mothers' bodies.  Illinois and other states have encouraged the move away from mercury with laws phasing it out in thermometers, school laboratories and industrial scrap. States also are taking steps to discourage mercury-laden garbage from being disposed of in landfills.  But there still is robust demand for mercury in developing countries, where it is used by small-scale gold-mining operations, thermometer manufacturers and chemical plants.  The demand is great enough that most mercury collected through U.S. recycling programs is sold instead of stored away. The U.S. Geological Survey estimates that most of the 276 tons exported by American companies went to Brazil, Mexico, Peru and Vietnam.  Total exports likely are much higher because U.S. metal mines aren't required to report what happens to mercury dug out of the ground in the same places as gold, silver, copper and lead, said William Brooks, who follows the mercury trade for the Geological Survey. 

The world market soon will be flooded with even more mercury. Two American chemical plants that use large amounts of mercury to create chlorine are shutting down. Obama is pushing a second bill that would require six other chlorine plants to close or switch to mercury-free technology by 2012.  Those plants turn salt, or sodium chloride, into chlorine gas and caustic soda by pumping a briny solution through electrified vats of mercury. The industry had more than 2,600 tons of mercury on hand at the end of 2005, according to the Chlorine Institute, a trade group. 

 

Environmental groups and a coalition of state officials are urging the federal government to store the metal safely instead of allowing it to be sold to other countries. The government already stores about 4,400 tons that had been stockpiled by the Defense Department.  The U.S. Environmental Protection Agency has agreed only to study whether the nation's commodity-grade mercury should be taken off the market.  "Outside of a handful of people, our role in this international trade has been completely off the radar screen for people in Washington," said Linda Greer, director of the environment and health program for the Natural Resources Defense Council. "We should be part of the solution, not part of the problem." 

 

In recent years the federal government's policies have focused largely on a Bush administration proposal to limit mercury emissions from coal-fired power plants, the world's largest manmade source of the metal. Coal plants are responsible for about half of the 3,000 tons of mercury churned into the atmosphere each year, according to the United Nations Environment Program. 

 

The next-largest source is gold mining in developing countries, which releases about 1,000 tons. UN officials say much of the mercury used to extract gold from ore comes from the U.S. and Europe.  U.S. mines long ago switched to mercury alternatives. But it still is used in other countries as an inexpensive method to remove gold from ore.  Lured by rising gold prices, some 15 million people across the world are engaged in small-scale mining, the UN says. The most common extraction process is to mix an amalgam of mercury and gold-laden ore. Mercury is released into the atmosphere when the mixture is heated to separate the gold.  Some of the toxic pollution lands nearby. But scientists studying weather patterns and the movement of mercury through the atmosphere have found the metal also can travel to places far from the source. "People are being poisoned," said Marcello Veiga, chief adviser to the UN's Global Mercury Project. "Right now there is no reason to care about this mercury getting into the air because it is so easily accessible."

 

Another major source of mercury emissions is the chlorine industry. Although most U.S. chlorine plants now use technology that does not require mercury, the others on average release five times as much mercury into the atmosphere as the average coal-fired power plant.

Obama said he introduced the bills that would ban exports and force the remaining chlorine plants to close or switch methods in response to a Tribune series last year that documented the health risks posed by mercury-contaminated fish.  "We know there is a cost-effective alternative," he said. "It sets the stage for us to tackle the more important issue of attacking emissions from coal-fired power plants."  Neither bill is likely to pass this year. Obama said he introduced them now to draw more attention to mercury-related problems and to pressure the EPA and other agencies to act.  He acknowledged that questions remain about what to do with the excess mercury. Chlorine plants that already have closed or switched methods have sold their supplies to similar operations in other countries, some of which have few if any environmental regulations. "Some of that mercury is polluting the same parts of the world where we get most of our seafood," said Jackie Savitz, campaign director for Oceana, an environmental group that has been pressuring U.S. firms to use mercury-free technology.

One of the top suppliers in the recycled mercury market is D.F. Goldsmith Chemical and Metal Co., an Evanston company that occupies a low, red-brick building in a quiet neighborhood. The firm at 909 Pitner Ave. obtains the mercury from scrap brokers, purifies it to meet industry standards and ships it around the globe.  Goldsmith, the company's owner, said in an interview that he doesn't always know what happens to the mercury he sells. But he assumes most of it ends up overseas.  Five years ago, the company tried to ship 20 tons of mercury from a shuttered chlorine plant in Maine to a similar plant in India. Dock workers refused to unload it, though, and the shipment was returned to the U.S.  Goldsmith said the chlorine company took back the mercury and eventually sold it on the international market through different brokers.  The incident highlighted how difficult it can be to keep the toxic metal off the market, Goldsmith said. He argued that stockpiling mercury will only encourage more mining for it in other parts of the world.  "If you're trying to solve the mercury issue, that isn't going to do it," Goldsmith said. "We're providing a service by giving people an outlet for their mercury. Obviously we're in business to make a profit, but I like to think we're providing a service to the community."