Tuesday, May 31, 2011
With the arrival of summer break, you have time to watch some movies, right? Below are my top 5 environmental law films. They make the cut both because they are very well-done and they have good content about the law and legal processes. The runners-up, in my view, are worth watching but lack a bit in one or the other category.
I call these environmental law films because they tie in well with the environmental law class I teach, which is focused on pollution (mostly CAA, CWA, TSCA, RCRA, and CERCLA). In future posts, I'll provide lists of my top 5 for other classes I teach, including Natural Resources Law, Climate Change Law, and Comparative Environmental Law. I have shown these films to students as a lunch series to complement my courses, and I also sometimes use short clips in class.
If you have one to recommend, please let me know. I'm hoping to watch some movies this summer too!
Environmental Law Films – Top 5
1) Who Killed the Electric Car (2006, 92 mins.): On California’s policies with respect to electric cars (Netflix)
2) Blue Vinyl (2004, 90 mins): on the use of toxic materials in building materials and other consumer products (Netflix)
3) Burning the Future: Coal in America (2007, 89 mins.): on coal mining and water pollution, especially in Appalachia (Netflix)
4) A Civil Action (1998, 115 mins): Based on toxic torts case of Anderson v. W.R. Grace (D. Mass, 1986); regarding whether the groundwater contamination caused by a leather production company was responsible for several deadly cases of leukemia. (Netflix)
5) Erin Brokovich (2000, 130 mins): based on a real toxic torts case regarding whether hazardous wastes deposited by Pacific Gas & Electric contaminated drinking water and were responsible for harms to human health in the southern California town of Hinkley. (Netflix)
Trashed: the Story of Garbage, American Style (2007, 76 mins): On landfills and solid wastes
The Recyclergy (2006, 33 mins): On community recycling in the San Francisco Bay area
On May 31, 2011, New York Attorney General Eric Schneiderman announced that he will sue the federal government in federal district court today for "its failure to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful 'fracking' technique – in the Delaware River Basin." Schneiderman claims that the federal government is required to conduct a NEPA review of the Delaware River Basin Commission's proposed regulations for natural gas development. The Delaware River Basin Commission is a regional commission that was approved by the federal government in 1961. Its members include the governors of Delaware, New Jersey, New York, and Pennsylvania, and a Corps division engineer. Thanks to Joel Kupferman for alerting me to this.
Monday, May 30, 2011
When confronted with friends or students who may be skeptical of the human role in climate change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO2 the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the beginning of the Industrial Revolution.
A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity.
Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms.
It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of CO2 and other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial.
For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:
- Blake Hudson
Sunday, May 29, 2011
* A Harvard study finds that traffic congestion in the USA's 83 largest urban areas last year led to more than 2,200 premature deaths and a related public health cost of at least $18 billion (USA Today).
* New Jersey's Gov. Chris Christie announced that the state will withdraw from the northeast Regional Greenhouse Gas Initiative, or RGGI, by year's end (NJ.com).
* Switzerland, in the wake of Fukushima Daiichi, has called for a permanent ban on nuclear power within its borders, including eventual decommissioning of its five existing nuclear power plants (NPR).
* Exxon and Chevron shareholders called for, but failed to adopt, a resolution seeking greater transparency about the processes and chemicals used by the companies for natural gas fracking (Wall Street Journal).
* NOAA declined to grant endangered or threatened status to the Atlantic bluefin tuna (NY Times).
* Google and Citigroup, Inc. each pledged to invest $55 million in the "Alta Wind Energy Center in southern California." The wind farm will be the largest in the country when completed (Wall Street Journal).
* On May 25, the Texas Senate passed a bill that would require hydraulic fracturing companies to disclose chemicals used in hydraulic fracturing. The bill differs from a somewhat similar bill passed earlier by the House.
Thursday, May 26, 2011
This week, many professors have gathered in Stevenson, Washington for the Rocky Mountain Mineral Law Foundation's Fifteenth Annual Institute for Natural Resources Law Teachers, and we have been inundated with interesting and sometimes surprising information. We have learned, for example, that the National Marine Fisheries Service (now the NOAA Fisheries Service) approved limited lethal management of the smart sea lions that troll the waters of the fish ladders at Bonneville Dam for abundant salmon snacks. The Humane Society successfully challenged this action on appeal from the United States District Court for the District of Oregon. According to the Ninth Circuit, the NOAA Fisheries Service's explanation for allowing sea lion killings was "incomplete and inadequate to permit meaningful judicial review;" the Service found that sea lions had a "significant negative impact" on salmon populations by killing between 0.4 and 4.2 percent of salmonids annually, but it found no significant impact to salmon when humans killed 5.5 to 17 percent of the population. This May, the NOAA Fisheries Service re-approved sea lion euthanization at the dam, but yesterday the service announced that it would suspend sea lion killings through September 2011 because the Humane Society and the Wild Fish Conservancy once again have sued the agency.
This post is supposed to address electricity storage, though, so now to my main point. During this conference, discussion of the Bonneville Dam has raised several challenging issues--not just sea lion euthanization. Most of us already know that transmission is an exceedingly important component of our energy system. The transmission grid is an aging, delicate structure that can fail in an instant, and it requires constant monitoring and maintenance if blackouts and brownouts are to be avoided. It is also the bottleneck that is holding up many proposed new generation projects--including renewable projects. But for me, this point hadn't fully sunk in until this conference, where we heard from several speakers about the Bonneville Power Administration's inability to accommodate the massive quantities of wind-generated electricity produced in Washington and Oregon--even after the BPA received several billion dollars in federal stimulus loans to expand its transmission grid. The BPA simply doesn't have room in its existing lines for the wind power, and the BPA argues that it cannot spill more water and reduce the quantity of hydroelectricity now flowing through the lines. So the wind farms have been "curtailed" and could lose millions of dollars in production tax credit money, which only flows into the farms' accounts when the farms are actually producing electricity; according to ClimateWire, wind energy producers could lose "as much as $50 million per year under worst-case conditions of excess generation and limited transmission capacity to export power out of the region."
The problem is that most electricity must be consumed at the moment that it is produced because we have very limited storage capacity for electricity. And if more electricity is produced than is demanded, renewables may continue to be curtailed--or they won't be built in the first place. As David Spence concludes in The Political Barriers to a National RPS (42 Conn. L. Rev. 1451, 1459 (2010)), "[A]s renewable generation is deployed, it will not displace fossil-fueled power on a megawatt-to-megawatt basis, unless and until we develop the capacity to store electric energy in larger quantities. While a great deal of research energy is being devoted to this problem, commercially viable alternatives that solve the intermittency dilemma remain unavailable."
This situation leads to the obvious question of why we haven't invested more in storage projects. Is America's general lack of commitment to storage simply part of our general underinvestment in R&D? Is improving storage not as popular of a political infrastructural goal as, say, repaving a highway? Do the groups that support storage lack sufficient lobbying power? I don't know the answer, but I can point to some of the storage efforts that are in the works and to materials that describe potential storage solutions. In 2007, Congress had sufficient political inspiration to enact the United States Energy Storage Competitiveness Act of 2007. Among other things, the Act directs the Secretary of Energy to "carry out a research, development, and demonstration program to support the ability of the United States to remain globally competitive in energy storage systems for electric drive vehicles, stationary applications, and electricity transmission and distribution." The Department of Energy's general introduction to energy storage is available here, and the National Renewable Energy Laboratory's description is here; NREL also has published a longer energy storage report. The DOE posts a list of some of the storage projects that it has funded, which include, for example, compressed air storage, "superconducting magnetic energy storage," and flywheels. Finally, the Pew Center has a useful report on electricity storage for renewables, a May 31 article in RenewablesBiz summarizes the federal funding available for storage research (thanks to a student for alerting me to this), and Drew Thornley has a discussion of electricity storage in Texas Wind Energy: Past, Present and Future, 4 Envt'l & Energy L. & Pol'y J. 68 (2009), which does not appear to be available on SSRN. Deborah Behles, in Why California Failed to Meet its RPS Target, 17 Hastings W.-N.W. J. Envtl. L. & Pol'y 163 (2011), also has a useful analysis of storage, including operating storage projects in California.
I'm sure that I have missed many important sources here, and I welcome comments and suggestions. Questions about underinvestment in storage seem ripe for more law review analysis.
On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain. I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students. McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:
I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . . But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . . It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.
McClure has a point. It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not. By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions. We lawyers parse words for a living. We need to be careful how we do so. Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.
Most administrative law classes, including mine, focus on procedure, and rightly so. Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on. Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.
This is the chief point of my aphorism. One cannot comprehend administrative law without understanding the politics that underlie it. This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student. Does the average administrative lawyer help craft agency policy on a daily basis? No. But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls? Also no. The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.
- Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked
- Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated
- Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence
- The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place
These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.
Any serious student of energy law -- or administrative law -- would do well to note that. They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.
Politics matter. Procedure does too.
Wednesday, May 25, 2011
Previously, I have voiced my frustration of how much the mentality of climate science-shimemet science has entrenched itself in the Republican Party. This week Stephen DeCanio wrote a very thoughtful post on Grist that addresses the problem of climate change from the following perspective:
Suppose you believe, as I do, in basic conservative principles (free enterprise and a market economy, limited government, and minimal change in established institutions that work well), but also acknowledge that anthropogenic climate change presents a sufficient danger that something needs to be done about it.
He goes on to put forward a proposal that would engage foreign governments, provide market incentives to drawn in participation from developing countries, invest in green jobs, and take steps to reduce U.S. reliance on fossil fuels. As he lays out his argument, he attempts to tie his suggestions to his self-described conservative principles. Are these the right solutions for conservatives confronting climate change? I am not sure. However, I give DeCanio a great deal of credit for trying to further the conversation.
While many conservatives in the political limelight have shown little interest in addressing climate change, ducking this issue--while convenient--is irresponsible. As silly as this sounds, think of it this way, in the off chance that the vast majority of relevant experts in the world are not part of some vast conspiracy to bake the science on this one, shouldn't conservatives have a contingency plan other than denial?
Climate change is a challenge facing all of us. Our system of government can't work with such partial engagement. To rift off of a line often spouted by a conservative radio talk show host, grappling with this problem can't be done effectively with half our brains tied behind our backs. Here's hoping that more conservatives will add their Mega Dittos to this sentiment.
-- Brigham Daniels
Tuesday, May 24, 2011
It’s time for another installment of my series on issues that seem too big for environmental law to deal with. This week, the big issue is consumption, aka the incredible amount of stuff we buy.
I hesitate to point to this one as too big, because several environmental law scholars have taken it on very successfully. The work of Michael Vandenbergh stands out. He has fleshed out the carbon-neutral individual; proposed supply chain regulation that could affect Chinese energy use; and built a stabilization wedge from household behavior change. Other references points include Doug Kysar’s work on the process/product distinction and Jim Salzman’s admirably early work on sustainable consumption and the law. Dan Farber has also recently been speaking and posting (here and here) about consumption.
So maybe, just maybe, this one falls short of “too big.” But I would maintain that it is a tough issue for environmental law scholars to get a handle on and say something useful about. Take me, for example. I write a lot about regulation and enforcement, so I have often thought about what I can say about regulation to reduce consumption. The answer I tend to come to is “not much,” at least with regard to traditional regulatory approaches. Regulation of household consumption is a non-starter for obvious reasons. Regulation of industrial consumption is also tricky business for reasons I discussed in a previous post. While voluntary regulation such as eco-labeling or voluntary commitments has potential, I can’t help but see it as a band-aid on a bullet hole.
And there is something bigger (of course!). I often find myself thinking that consumption truly does lie at the heart of present-day American capitalism and culture. Then the question becomes: “what can environmental law do to reshape American capitalism and culture?” That seems pretty big.
- Lesley McAllister
p.s. A few other great resources on consumption:
* Annie Leonard’s The Story Of Stuff
* Michael Vandenbergh’s (et al.) recent piece on carbon labeling in Nature Climate Change
* The field of happiness studies (complete with its own journal),
Monday, May 23, 2011
The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%). The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.
Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S.
The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned. Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments. In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose. The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.
A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope." Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.
- Blake Hudson
Sunday, May 22, 2011
* The New York Times reports on how the Fukishima disaster has complicated the United States nuclear waste storage challenge.
* Researchers at MIT are developing a "third" type of solar power technology (solar-thermoelectric).
* An independent study faulted Massey Energy this week, as well as lax oversight by federal and state regulators, for the April 5, 2010 explosion in the Upper Big Branch mine in Montcoal, West Virginia.
* Batteries are making waves, at least in one place, in the electric supply business.
Saturday, May 21, 2011
Cambridge University Press has announced a new environmental law journal: Transnational Environmental Law.
The journal will begin publication in Spring 2012. The journal will be peer-reviewed and "strive to develop a new generation of environmental scholarship which bridges geographical, generational, disciplinary and academic-practitioner divides," according to an announcement.
Its editorial team includes:
- Thijs Etty, VU University Amsterdam (editor-in-chief)
- Veerle Heyvaert, London School of Economics (editor-in-chief)
- Cinnamon Carlarne, University of South Carolina
- Daniel Farber, UC Berkeley, Boalt Hall Law School
- Jolene Lin, Hong Kong University
- Joanne Scott, University College London
The journal's website is http://journals.cambridge.org/TEL.
And here is a bit on their submissions and publication policies:
The Editors of TEL warmly invite the submission of manuscripts from scholars, lawyers and professionals active in fields related to environmental law and governance. Prospective authors may also contact the Editors with proposals for planned submissions. The Editors will also consider revised versions of previously released working papers, provided that such publication is clearly acknowledged upon submission of the paper for consideration to TEL.
All contributions in the journal are peer-reviewed (double-blind), and will be evaluated on their:
• Analytical thoroughness
• Affinity with the mission and scope of the journal
• Conformity with the highest standard of scholarly presentation
TEL will strive to respect a turn-around time of under 6 weeks between receipt of the manuscript and notification of acceptance, rejection or need for revision. All accepted work will be scheduled for publication in print and online. To reduce time between acceptance and publication articles will appear online as FirstView publications in advance of their scheduled publication in print.
Friday, May 20, 2011
First of all, please do not ask me how I came upon this particular section of a Thundercats episode. I still consider it research. But being a child of the 1980's I couldn't help but notice two of my favorite things rolled into the below clip - the Thundercats and the nuances of global environmental governance (or any global governance for that matter). While Autobot leader Optimus Prime (of Transformers fame) practices and defends constitutional law ("freedom is the right of all sentient beings"), in this clip Panthro, Tygra and Cheetara provide some valuable insights into international law and the difficulties of enforcing it.
It is amazing how even across the vast distances of space and time policy-makers deal with the same problems of creating institutions to effectively manage a federation of numerous sovereign governments. The Thundercats effectively describe in 18 seconds the basic nature of international law, being largely unenforceable in the absence of military (or Thundercat) intervention or state acquiescence to the dictates of international arrangements. I believe (and hope) the Thundercats will be involved in the next round of climate talks.
On another note, where in the world have all the good cartoons gone? As for me and my children, we will watch the Thundercats.
- Blake Hudson
Thursday, May 19, 2011
This week, news outlets are reporting that Nuclear Regulatory Commission Chairman Gregory B. Jaczko has been out-voted by other commission members. The issue du jour is whether to release an unredacted preliminary safety report to Congress -- formally, draft "Volume III of the Safety Evaluation Report ('SER')" for the Department of Energy's now-withdrawn Yucca Mountain license application.
According to an April 28, 2011 letter released this week by Congressman Ralph M. Hall (R-Tx.), a majority of commissioners disagreed with Jaczko and sent an unredacted version of the technical report to Congress. "I have reiterated my belief that public release of preliminary staff findings and conclusions establishes a dangerous agency precedent," Jaczko wrote in the letter. "Notwithstanding my reservations, a majority of the Commission is willing to provide unredacted copies in response to Congressional Committee requests provided that they are held in confidence."
At multiple turns, Chairman Jaczko's letter emphasizes the tentative nature of the Commission staff's evaluation:
- "[T]he findings and conclusions in the document are preliminary."
- "The staff's preliminary findings may turn out to be incorrect or incomplete. As such, they can mislead or confuse the public."
- "The redacted portions represent the predecisional findings and conclusions we normally protect from public release consistent with the Freedom of Information Act. Even my colleagues and I have not had access to the redacted portions of SER Volume III. As the appellate body for the agency, the Commission does not have access to predecisional, non-public information regarding the staff's substantive review of the Yucca Mountain application."
Perhaps more than anything, the Commission's release of this report exposes the increased politicization of energy policy in the nation's capital this year. Yucca mountain long has been a political battleground. Now, despite the Obama administration's express support for the nuclear industry, the current Congress is using the president's decision to shutter Yucca as political ammunition.
Add to this the ongoing debate over tax credits utilized by the oil industry, the increasing spotlight on natural gas fracking, and continuing malaise in D.C. on climate change policy, and the political nature of energy policy in the United States is laid bare. It resurrects the persistent question of American energy law and policy: Will we let markets decide our fate, or will we affirmatively choose the energy path we desire?
Once again, the answer seems to be "neither." Like the few Jedi scattered in an army of so many Republic clones, the real debate gets lost in the politics.
Wednesday, May 18, 2011
Over the past several years almost all of the Republican candidates vying for their party's nomination to run for President have tried to walk back past positions taken on climate change. Governor Tim Pawlenty, for example, was a supporter of addressing climate change when he was governor of Minnesota, but when addressing CPAC earlier this year, he not only backed off, he said of his prior position, "it was a mistake, it was stupid, it was wrong." Last week, Ann Carlson wrote an informative post for Legal Planet documenting the many flip flops on this issue.
However, a few of the candidates have stayed true to their past positions on climate change. Of these only Ambassador/Governor Jon Huntsman has stuck to his guns with a former position that acknowledged that climate change is a real problem that is worth addressing. In an interview Time published earlier this week, he said,
This is an issue that ought to be answered by the scientific community; I’m not a meteorologist. All I know is 90 percent of the scientists say climate change is occurring. If 90 percent of the oncological community said something was causing cancer we’d listen to them. I respect science and the professionals behind the science so I tend to think it’s better left to the science community—though we can debate what that means for the energy and transportation sectors.
Given the political realities of the Republican nominating convention, this is a courageous position for a candidate to take. Despite the fact that he stands with the National Academies of Science, the InterAcademy Council, the International Council of Academies of Engineering and Technological Sciences, the National Research Council, the American Association for the Advancement of Science, the American Meteorological Society, and even the Bush Administration’s Environmental Protection Agency, it is still awkward company to also stand alongside President Obama and the Sierra Club.
Obviously, both Democrats and Republicans have their blind spots and almost every politician flip flops on an issue at some time or another. (President Obama, for example, is currently struggling with explaining how he could have voted against raising the debt limit when he was a Senator but why it is vital for Congress to raise the debt ceiling now.) To me, it is a distressing commentary of our time that so many politicians are willing to walk away from their better judgment when it serves their political interests. Particularly when it comes to issues as massive as climate change, it seems that we would be best served by politicians willing to tell us what we need to hear instead of what we just want to hear.
-- Brigham Daniels
Tuesday, May 17, 2011
This is the third in a series (see the first and second) exploring issues that I perceive as central to the study and practice of environmental law, but in some ways out of its reach or “too big.” This week I’d like to tackle the very big issue of global inequity. In any discussion of international climate law, global inequity is front and center. It’s not hard to talk about at a superficial level. It’s obvious and uncontested. But as soon as you start thinking about how international law should respond to global inequity, the difficulties begin.
In my climate change law class, we discussed how to construct a post-Kyoto climate regime. I asked my students to imagine that all the countries of the world had agreed to a worldwide cap and trade system to reduce greenhouse gas (GHG) emissions 50% from 2010 emissions by 2050. So, assuming 2010 worldwide emissions are 30 billion metric tons, the 2050 worldwide cap would be set at 15 billion metric tons. The only question left, I told them, was how to apportion the right to emit. In other words, how many allowances should each country get?
From a standpoint of global equity, an appealing apportionment principle is an equal per capita allocation of the right to emit. In other words, each country’s cap would be based on its population. Allowances would be tradable, so rich countries could continue to emit at higher per capita levels but they would have to pay poor countries to do so. Given the strong correlation between GHG emissions and human development, this principle seems to appropriately incorporate the notions of equal opportunity and human rights.
Interestingly, there wasn’t a student in the class willing to defend the proposition that a global cap and trade system should allocate allowances on a per capita basis. The numbers, I think, made it very hard for them to imagine. Assuming a projected population of 9 billion people in 2050, per capita emissions in 2050 would have to be about 1.6 metric tons. For the sake of comparison, that’s about a tenth of the current per capita GHG emissions in the US, and roughly equal to the current per capita GHG emissions in India.
Whither global equity?
- Lesley McAllister
Monday, May 16, 2011
A recent article highlights the controversial concept of "conservation triage," whereby limited conservation resources are directed toward the species with the "best prospects for long-term survival." While the list of endangered and threatened species is growing, the funding for such programs is increasingly tight, and always finite.
The article highlights the plight of the California condor, the population of which dropped to 22 individuals in 1987. Twenty five years later the condor numbers only 192 living in the wild, while 189 live in captivity. The program to monitor and maintain condor populations costs more than $4 million a year, while the typical minimum viable population size for long-term species survival is about 5,000 individuals. At least one group of conservationists have asserted that "it is time for the global rescue operation to adopt the mind-set of a battlefield medic: Some endangered species are far more likely to recover than others, so we should identify those and save as many as we can." These conservationists argue that "you could save hundreds of butterfly species with the same investment being put into the condor."
Others, on the other hand, argue that "focusing on the cheapest wins 'may increase the short term tally of species, but we would end up saving only the most convenient ones.'" These conservationists point to the white rhino, the population of which dropped to 20 individuals at one point, but that stands at over 17,000 today.
This controversy demonstrates yet another tough choice faced by those concerned about the environment. It also highlights how approaches to habitat conservation can provide economic efficiency gains that can save both the most species and provide better long-term survival opportunities for those, like the condor, that are in limited numbers in the wild.
Land development activities are appropriating increasing and copious amounts of habitat/natural capital every day. It would seem a shift in focus from the costly propping up of single species in quickly developing areas to the prevention of habitat destruction is in order. The internalization of these environmental harms into our economic development costs may seem like triage to development interests and consumers, as they forgo - in the short term - a slight decrease in profit (or developers pass that cost down to the consumer). But in the long run it will be a far less costly triage than that proposed by some conservationists.
- Blake Hudson
As a follow-up to Blake's kind post regarding my brief sound bite, I'd like to offer a few thoughts that weren't reflected in the extremely short NPR statement. Natural gas has "exploded" in the United States, both figuratively and, in some cases, literally. In 2009, permits issued for natural gas drilling in the Marcellus Shale increased by about three-hundred percent. For specific permitting numbers visit the Pennsylvania Department of Environmental Protection's website, and click on the "Marcellus permits issued" maps. The Barnett Shale in Texas has seen a similar explosion in drilling permits. In 2010 alone, Texas's Railroad Commission issued 2,157 permits for natural gas drilling in the Barnett Shale. And these are not the only areas that are experiencing--or soon may experience--an explosion in natural gas development.
Most gas wells that are drilled (up to ninety percent of the wells, in fact), are now hydraulically fractured. Fracturing methods differ depending on where the drilling occurs, but in shales, hydraulic fracturing often requires "slickwater" fracturing, which uses millions of gallons of water and about 0.5 percent chemicals by weight. (See "sample fracture fluid composition by weight" in the previous link.) Some of these chemicals, such as benzene and toluene, are toxic; others are benign. For a slickwater fracture (a "frac" or "frack," as it is sometimes called), a company drills a well--often both a vertical and horizontal one--and then cases (lines) it. It perforates the well, injects an acid such as hydrochloric acid into the well to clean the formation surrounding the well, and injects several million gallons of water mixed with some chemicals into the well to induce or expand fractures in the formation around the well. It also injects proppant, such as sand, to prop open the fractures once they are formed, allowing gas to flow into and up the well. For a good summary of the process, see the New York Department of Environmental Conservation's Supplemental Generic Environmental Impact Statement starting at page 5-93.
The explosion in permits, drilling, and fracturing has been accompanied by explosions of gas wells, an intrastate gas pipeline, and water wells or homes near gas drilling and fracturing sites in Pennsylvania and Arkansas, among other states. Fracturing itself has not, in many cases, caused these incidents; they often are associated with the drilling and gas production activity that accompanies fracturing. The recent blowout in Pennsylvania, however, which spewed chemicals into a creek, occurred during a hydraulic fracturing operation. The growth of gas drilling and fracturing permits issued also has generated a number of potential environmental concerns, including, for example, the following:
1) Are chemicals that are transferred into water prior to fracturing stored and transferred in a safe manner? Some surface spills have highlighted the importance of this question.
2) What happens to the injected water and chemicals that do not come out of the formation after being injected?
2) How is the water/chemical solution that flows back up out of the well as "flowback water" after fracturing, along with the naturally produced water from drilling, stored on site and disposed of? Often, the flowback water--as described further below--is stored in a pit or tank at the well site and then either disposed of in an underground injection control well or through a wastewater treatment plant. Companies are improving flowback water recycling technologies, too.
3) Are onsite storage pits for flowback water properly constructed to ensure that chemicals do not seep into the soil and/or water? (Subtitle C (the hazardous waste disposal portion) of the Resource Conservation and Recovery Act does not apply to many oil and gas exploration and production wastes, as described in one of my previous posts. This might explain why many states allow gas companies to store flowback water, which sometimes contains toxic chemicals, in a pit on the surface while awaiting disposal. Some companies are moving toward storage in steel tanks on the surface. New York has proposed to require steel tanks.
4) When the flowback and produced water is disposed of in underground injection control (UIC) wells--as it often is in Oklahoma and Texas and other areas--are these wells properly constructed, as required by the Safe Drinking Water Act and the SDWA permits that accompany UIC wells?
5) When the flowback water is disposed of through wastewater treatment plants, are the plants able to handle the large quantities of wastes, the new chemicals, and the small quantities of natural radiation that the water sometimes picks up while sitting underground?
6) Is methane from fractured formations seeping into groundwater? A recent study in the Proceedings of the National Academy of Sciences begins to investigate this question. Have chemicals injected into perforated wells ever contaminated groundwater, and what is the risk of such contamination, if any? The Natural Resources Defense Council maintains a "list of incidents where drinking water has been contaminated and hydraulic fracturing is a suspected cause." The Interstate Oil & Gas Compact Commission--formerly headed by Governor Sarah Palin and now led by Governor Mary Fallin of Oklahoma--observes that "IOGCC member states have all stated that there have been no cases where hydraulic fracturing has been verified to have contaminated drinking water." Chesapeake Energy--a major gas extraction company--also states, "Based on reviews of state oil and gas agencies, there has not been a documented case of drinking water aquifer contamination related to the fracking of a deep shale natural gas or oil well."
7) A host of other questions relate to the drilling--not the fracturing--process, such as whether drilled wells are being properly cased to protect groundwater; whether companies are following proper stormwater control measures when constructing access roads and well pads; whether the naturally occurring radioactive materials (NORM) wastes that can come up out of a drilled well in the form of drill cuttings and other substances are being properly disposed of (land application often is allowed for certain types of drill cuttings); and whether substances such as used drilling muds are being properly disposed of.
Finally, authors of a recent draft Cornell study, also discussed on NPR, believe that natural gas may release more greenhouse gas emissions than assumed--so much so that considered over a certain time frame, the emissions could begin to rival emissions from coal.
My two cents? Natural gas seems important because it is abundant within U.S. borders and seems to release fewer greenhouse gases (on a CO2-equivalent basis) than do other fossil fuels, although the recent Cornell study suggests that scientists need to look at this more closely. But we should proceed cautiously and safely with natural gas extraction--just as we should with any other form of fuel extraction or energy production. We must carefully examine the risks of natural gas extraction and its alternatives. The EPA is beginning to do this with its "lifecycle" study of the effects of fracturing on water. Finally, we shouldn't forget that natural gas is, in the end, a bridge to something else--hopefully to an energy mix that will largely rely upon sustainable forms of energy such as renewables. A one-hundred year supply of natural gas looks like an "abundant" fuel source now, but from the perspective of future generations, it is a finite source. While relying on bridge fuels, we must start building the opposite shore to which the bridge will run. A bridge without a stable end point is a flimsy bridge, at best.
My colleague and co-blogger Hannah Wiseman weighed in today on "fracking" and its provision of a cleaner alternative to other dirtier burning fossil fuels. You can hear her comments here. The story highlights how this area of energy law is likely to be a growing field for lawyers due to the many complexities of the process and its resulting controversies.
- Blake Hudson
Sunday, May 15, 2011
* This week WildEarth Guardians and the federal government settled WildEarth Guardian's pending Endangered Species Act listing litigation, which was substantial given in that two of its recent petitions included documentation and request for the listing agencies to list a combined total of more than 1,100 species. By the terms of the settlement agreement, the Obama Administration agreed to address 251 candidate species and petitioned species and WildEarth Guardians agreed not to bring additional lawsuits in the interium. Additional details of the settlement can be found on the ESA Blawg, the New York Times, and BusinessWeek.
* Ann Carlson wrote an informative post on Legal Planet detailing how many of the Republican candidates running for President have altered their positions on climate change.
* The Sierra Club called on Governor Brown to change California's implementation of its climate change law, AB 32. The LA Times' coverage on this issue was particularly good.
* There is a conflict brewing between the EPA and Illinois regarding the polluted state of the Chicago River (the same issue and river at issue in the frequently taught case of Missouri v. Illinois). Tip of the Hat to Jason Czarnezki's blog for directing us to the Milwaukee Journal Sentinel's coverage of this.
* The Hill reports that House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) may use the upcoming debt-ceiling legislation to try to thwart EPA's regulation of greenhouse gases. This follows on the news of Senate Republicans introducing legislation to abolish the Environmental Protection Agency.
* The following headline by the LA Times may be some of the best environmental news of the week: $25,000, 350-mile-per-charge electric car could be reality by 2017, DOE says.