Sunday, July 31, 2011

"The world consumes 1 million plastic shopping bags every minute"....

Plastic bags
...that is a lot of plastic.  1.44 billion plastic bags a day, 525 billion plastic bags a year. You get the idea.  A few recent articles/blogs have highlighted the copious quantity of plastic bags used/consumed worldwide, and in the U.S. in particular, and the numbers are certainly astounding. American consumers use approximately 102 billion plastic shopping bags a year. 

Plastic waste causes a variety of harms, of course, killing wildlifelittering our nations landscapes and waterways, clogging sewers, containing harmful chemicals that disrupt endocrine regulators related to sexual function, and even consuming precious non-renewable resources that could be put to a variety of other uses.  On this latter point, in one year's time China reduced its plastic bag use by two-thirds, which saves the equivalent of 11.7 million barrels of oil.  Though this is only a little more than half of the number of barrels of oil consumed in the U.S. on a daily basis, it is hardly the highest and best use of a non-renewable resource (even when considering plastic vs. plastic trade-offs, as this amount of oil could be used to manufacture a great quantity of plastic-based hospital implements, for example, that are in short supply in the developing world). Plastic bags are also notoriously difficult to recycle, with only 9% being recycled.

The articles/blogs highlighted above take particular issue with efforts of the plastic industry to block plastic bag bans in the U.S., despite the fact that a number of countries worldwide have instituted strong anti-plastic bag policies and the United Nations Environment Programme recently declared that "[t]here is simply zero justification for Wearers of plastic bags manufacturing them anymore, anywhere." These industries have used primarily scare tactics about the supposed dangers of alternative reusable or paper bags and even lawsuits aimed at preventing anti-plastic bag policies.

Even so, a variety of U.S. communities have taken aim at plastic bags. San Francisco was the first American city to ban them, and Washington, D.C. has imposed a five-cent fee per bag, resulting in a drop from 22.5 million bags per month to 3 million per month. Just this month the city of Portland banned them completely (with a few caveats). For some interesting insights supporting these bans from a plastic-bag-ban skeptic, see here.

I first became interested in the problems created by plastic consumption/disposal after Plastic Polymers watching "Toxic Garbage Island," a documentary about the Pacific Ocean gyre containing an amount of plastic and other trash equal to the size of Texas (not an actual island, but rather a diffused accumulation of plastic broken down into constituent parts).  As the documentary describes, it's not a plastic bag that you always find in the gyre, but rather every piece of a plastic bag broken down into its fundamental polymers - fundamentally altering the chemical make-up of the world's oceans (already being altered by a variety of other drivers). 

Of course, the part of the documentary that impacted me the most was the statement (paraphrasing) "When you go to Subway, how long do you use the plastic bag? Five seconds? Five minutes?" So just keep "one million plastic bags a minute" in your mind the next time you are choosing your method of carrying your sandwich out of the shop.  The paper its already wrapped in works very nicely, leaving you only to worry about all the preservatives in your sandwich (we just can't win them all I suppose).

- Blake Hudson

July 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 30, 2011

EPA Proposes New Air Standards for Oil and Gas Wells

In response to a court order arising from a complaint filed by WildEarth Guardians and the San Juan Citizens Alliance and a resulting consent decree, the Environmental Protection Agency has proposed New Source Performance Standards and revised National Emission Standards for Hazardous Air Pollutants for air emissions from oil and gas production.  For NSPS, the EPA has long had a source category for crude oil and natural gas production, but its only standards under this category have been for natural gas processing plants.  The proposed rule would, for the first time, set NSPS for volatile organic compounds from producing wells.   Since 1992, the EPA also has included oil and gas production as a major source for which a NESHAP must be set, and in 1999 the EPA set maximum achievable control technology standards for this source.  Its proposed rule revises the MACT standard for storage vessels and small dehydrators used in oil and natural gas production.  The proposed rule does not change the EPA's area source (generally available control technology) standards for oil and gas production.

Notably, the EPA's rule would require "reduced emission completion" ("green completion") and pit flaring for new hydraulically fractured and refractured wells; these techniques capture and reduce VOCs emitted.  (The EPA considers refracturing to be a modification and thus to trigger NSPS.)  Chesapeake Energy claims that reduced emission completions are not "available for every well that is drilled and completed"  because the process "requires special equipment and the installation of a natural gas gathering line and sales meter prior to well flowback and testing."

For hazardous air pollutants from oil and gas production, the EPA's rule would apply MACT 95 percent emission reduction standards to "every storage vessel at major source oil and natural gas production facilities" and would set a new standard for benzene, toluene, ethylbenzene, and xylene (BTEX) emissions from small glycol dehydrators used in oil and gas production.  These dehydrators remove water and hazardous air pollutants from natural gas.  "The proposed MACT standards for the subcategory of small dehydrators at oil and gas production facilities would require that existing affected sources meet a unitspecific BTEX limit of 1.10x10-4 grams BTEX/standard cubic meters (scm)-parts per million by volume (ppmv) and that new affected sources meet a BTEX limit of 4.66 x10-6 grams BTEX/scm-ppmv."

The EPA's news release and information page on the new standards provide more detail.

-Hannah Wiseman

July 30, 2011 | Permalink | Comments (0) | TrackBack (0)

Energy Law Treasure Trove

Earlier this year, the University of Utah law school hosted what turned out to be a great symposium on the topic, "The Future of Energy Law."  The articles from that conference have just been published, and offer what can only be described as a virtual treasure trove for energy law enthusiasts.

They feature some of the brightest minds in the game.  To wit:

  • The Past, Present, and Future of Energy Regulation by Dick Pierce

  • Controlling Greenhouse Gases from Highway Vehicles by Arnold Reitze

  • Residential Renewable Energy: By Whom? by Joel Eisen

  • The Next Step: The Integration of Energy Law and Environmental Law by Amy Wildermuth

  • "Our Generation's Sputnik Moment": Regulating Energy Innovation by Joe Tomain

  • The Future of Energy Law - Electricity by Ed Comer

We were lucky enough to hear in person these emerging ideas in what is an ever-changing field here in Salt Lake City earlier this January.

They're now all available for download as well.

-Lincoln Davies

July 30, 2011 in Climate Change, Energy, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, July 29, 2011

In Case You Missed It - The Week of July 24-July 30

President Obama announced that the EPA and thirteen major automakers reached agreement on to raise fuel economy requirements by Model Year 2025 to 54.5 miles per gallon for cars and light-duty trucks (EPA)

A new study suggests that Yellowstone National Park will be fundamentally altered by wildfires as a result of climate change. (Intl. Business Time)

Small local water utilities sue large-farmer-dominated water banks in California state court (NY Times)

The Washington State Supreme Court ruled that Kittitas County's land-use decisionmaking failed to protect groundwater resources (Yakima Herald)

The EPA proposed new requirement for emissions from wells that are hydraulically fractured, including the capture of 95 percent of volatile organic compound (VOC) emissions (EPA)

The New Mexico Supreme Court ruled unanimously to allow an environmental group to participate in the Environmental Impact Board's meetings regarding public utility greenhouse gas regulations (New Mexico Independent)

July 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 28, 2011

Environmental Law, Day 1

It's now that time of year when I realize that summer will soon end, classes will start, and my syllabus needs an update.  Which has me thinking about a recurring problem with my environmental law course: day 1.

I know what I want to accomplish.  I want to give the students some sense of the content of the course, and why it matters, and I want them to walk away thinking that the course will be intriguing, engaging, and challenging.  I also want to convince them--lost cause, perhaps--that in my classes, at least, they should never follow Twitter or Facebook, buy anything on EBay, check espn.com, or do all the other things I know perfectly well that some of them will spend half the semester doing.  And I want to give them a story or case or other little tidbit that provides a preview of and window into the wonders of environmental law.  Instead, I usually wind up providing a somewhat dull course summary, then do some climate change 101, then try to extract participation from students who seem like they just need a little more coffee to get through the post-summer hangover.  Class two usually is great, as is everything else until the students crash into the Clean Air Act like bugs spattering onto a windshield.  But class one, to me, usually feels like a dud.

So, dear readers, what to do?  This blog hasn't provoked a lot of commentary, but we know you're out there.  Professors, how do you dazzle your students on day one?  Students, current and former, what works for you?  I'd love to know.

-Dave Owen

July 28, 2011 | Permalink | Comments (8) | TrackBack (0)

Wednesday, July 27, 2011

Salazar Names Marcilynn Burke as Acting Assistant Secretary for Lands and Minerals Management

The Department of Interior just put out the following press release.  For those of us who know Marcilynn, it can only make us more optimistic about the direction Interior is going.  One thing omitted below is that she is also one of the most thoughtful and friendly people ever to grace the halls of academia. 

Salazar Names Marcilynn Burke as Acting Assistant Secretary for Lands and Minerals Management

 WASHINGTON, D.C.—Secretary of the Interior Ken Salazar today named Marcilynn Burke to serve as Acting Assistant Secretary for Land and Minerals Management at the Department of the Interior.  Burke, who currently serves as Deputy Director for Policy of the Bureau of Land Management, will take over for Wilma Lewis, who is being commissioned as Judge for the District Court of the Virgin Islands.

 “Marcilynn’s broad experience with the Bureau of Land Management and as an expert in natural resource matters will greatly benefit Interior’s energy and conservation priorities,” Salazar said. “She is an outstanding choice to ensure Interior’s programs address the challenges of managing our public lands and resources in the 21st century.”

 Burke took leave in August of 2009 from the University of Houston Law Center (UHLC) in Texas, where she is an Associate Professor of Law, to serve as the Bureau of Land Management Deputy Director for Policy under Director Bob Abbey.

 At UHLC, she teaches environmental law courses on land use and its management, natural resources, and property. She has also served as visiting assistant professor of law at the Rutgers School of Law in Camden, N.J., and at Seattle University School of Law.

 Burke was previously with the law firm of Cleary, Gottlieb, Steen & Hamilton in Washington, D.C., where she focused on environmental law, antitrust, and civil and criminal litigation. She clerked for the Honorable Raymond A. Jackson of the Eastern District of Virginia.

 Burke received her bachelor’s degree in International Studies from the University of North Carolina at Chapel Hill where she was elected to Phi Beta Kappa. She obtained her law degree from Yale Law School where she was an editor for both the Yale Journal of Law and Feminism and the Yale Journal of International Law.

Former Assistant Secretary for Land and Minerals Management Wilma Lewis was nominated by President Obama for a judgeship in the District Court of the Virgin Islands in March, 2011.  She was confirmed by the Senate in June and will be commissioned shortly in that position.

“Wilma has served this Department with distinction and I am grateful for her leadership over the past two years,” Salazar said. “I am confident Wilma will make an excellent addition to the bench and the people of the Virgin Islands are lucky to have her.”  

The Assistant Secretary for Lands and Minerals Management helps establish Interior policies and provides oversight to the Bureau of Land Management, Bureau of Ocean Energy Management, Regulation and Enforcement, and the Office of Surface Mining Reclamation and Enforcement. The assistant secretary oversees management of public lands and resources, including production of federal energy and mineral resources, both onshore and on the Outer Continental Shelf.

-- Brigham Daniels

July 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 26, 2011

DeChristopher's Sentence Warranted

Today Tim DeChristopher was sentenced for two years and fined $10,000 for impeding an auction for natural gas leases on public lands in Utah.  According to DeChristopher, he disrupted the auctions because he was worried about climate change and wanted to do something about it. 

While DeChristopher and his supporters are anxious to hold him out as heroic climate change fighter, for reasons I outlined a few months ago, I think it is a mistake to consider him a hero.  There were many smarter ways to fight the auction at issue (ways that have since proven successful).  Given that, DeChristopher's choice to break the law was ill advised, and his choice to continually thump his chest in the aftermath was severely misguided. 

While I feel somewhat bad for him, it is because I believe he was right in thinking climate change is a problem we need to address.  Certainly, he is going to get a lot of sympathy over the next couple of days from well meaning people worried about climate change.  While I respect the sentiment embedded in that point of view, I believe the judge in this case was right to send him to prison.  

Civil disobedience is a valuable and important tool.  However, one cannot allow for civil disobedience in a law-abiding society when there are many ways to address the problem at hand through legal means, particularly when those means are much more likely to create the desired change than the civil disobedience itself. 

Given that the judge will be blasted by many in the public, his willingness to uphold the law deserves our respect.  He has mine.

-- Brigham Daniels

July 26, 2011 | Permalink | Comments (1) | TrackBack (0)

Overallocation and Reform in the EU ETS

There are some who say that the European Union Emissions Trading Scheme (EU ETS) is a big failure and others who say it is a great success.  I am not going to pronounce judgment today.  I’d just like to suggest that the EU ETS is a good example of a cap-and-trade program that has been able respond to overallocation and other problems through ongoing reform.

The EU ETS, initiated in 2005, regulates about 11,500 stationary sources in 27 European countries.  It covers about half of all CO2 emissions in the region.  The EU ETS’s first phase covered the years 2005 through 2007.  By 2006, it became clear that there was an oversupply of EU ETS allowances market, and allowance prices collapsed.  The second phase of the program, which spans 2008 to 2012, is designed to ensure that Europe meets its Kyoto Protocol emissions reduction commitment.  Tighter caps were imposed for this phase of the program, but due to the economic recession in these years, it appears that there is still an oversupply of allowances.  Allowance prices haven’t collapsed, in part because allowances can be banked for the third phase of the program, covering the years 2013 to 2020.  In the third phase, more stringent emissions caps are being imposed that are aimed at reducing the emissions of the regulated entities to 21% below 2005 emissions by 2020. 

The almost 7 years of the EU ETS have been a case study in cap-and-trade tinkering.  Notably, the first phase is often referred to as the “pilot phase.”  The EU apparently recognized that it could not set up a cap-and-trade system that would work for the long term at one fell swoop.  Unlike the Acid Rain Program and RGGI (see my posts on overallocation in these programs here and here), the EU ETS had reform opportunities built into the program, and the EU has used them to progressively tighten caps as well as add new types of regulated sources and increase the number of allowances auctioned.  One of the major lessons to be taken from the EU ETS is that cap-and-trade programs should be designed to enable reforms in the cap and other important features based on the performance of the program. 

- Lesley McAllister

July 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

Timothy Mulvaney on "Proposed Exactions" in Takings Law

Tim-Mulvaney

Tim Mulvaney, Texas Wesleyan School of Law, has posted "Proposed Exactions" on SSRN.

Here is the abstract:

"In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it."

- Blake Hudson

July 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 24, 2011

In Case You Missed It - The Week of July 17-July 23

- The U.N. Convention to Combat Desertification released a report detailing the latest figures, graphics and maps on desertification, land degradation and drought.

- Duke University researchers report that children living close to airports have higher blood lead levels than other children.

- The California Air Resources Board has proposed rules to tighten vehicle emissions standards even further by 2025, such that new vehicles emit 75% less smog-forming pollution than today's vehicles.

- Environmental and public health groups filed suit against the EPA for missing a six-month deadline to determine that the Los Angeles Basin failed to meet the ozone standard in November 2010.  (LA Times)

- Mayor Michael Bloomberg donated $50 million to the Sierra Club to use in its efforts to decommission 1/3 of existing coal-fired power plants by 2020. (NY Times)

- To pollute or not to pollute? A new study finds that particulates in the atmosphere have slowed global warming by as much as one-third.

July 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 23, 2011

Green Energy in Korea

I am in Seoul participating in the Korea Legislation Research Institute's conference, "Architecting Better Regulation to Overcome Energy Crisis."  The conference has produced a fascinating discussion about how best to transition to a renewable energy economy.

Korea has been using a feed-in tariff ("FIT") system to promote renewables deployment.  That changed in 2008 when the system came under criticism, in large part because it placed a strain on government finances.  This goes to show that how policies are designed very much matters.  FITs that raise consumer prices too much are subject to challenge on that ground, but those that choke government coffers may make the point even more acutely.

The plan now is to switch to a renewable portfolio standard ("RPS"), much like what many of the states in the U.S. are using.  It will be a very interesting case study that puts these two mechanisms in sharp contrast.  Debates about whether FITs or RPSs are better at incenting renewables deployment are longstanding; others have advocated that they can work together.  Korea's change may add some clarity to the discussion.

It may also prove to drive home some of the themes that emerged from the conference speakers:

  • Jannik Termansen, a vice president at Vestas, noted that what industry needs is not as much one scheme over another, but rather, "TLC": not tender loving care, but "transparency," a "long-term, stable commitment," and "certainty."  He noted that installed wind capacity in the Asia-Pacific region has now surpassed that of North America, and looks to grow even further in coming years.

  • Penny Crossley from the University of Sydney argued that renewables are important not just from a climate change perspective but also from that of energy security.  "Energy security is another reason why renewables are important," she said.  She noted six different ways that renewables promote energy security, and argued that we should commoditize those security benefits.

  • Prof. Wu Zhonghu and Libin Zhang reminded us of the heavy role China will play in shaping the world's energy future.  They noted that China is now a leader in world energy consumption, and that China remains in a transition from a centrally planned system to a market-based one.  How this affects renewables development long-term remains to be seen.

  • Nicolas Croquet highlighted the EU's 20-20-20 challenge.  It is ambitious indeed:  By 2020, 20% renewable energy use, a 20% reduction of greenhouse gas emissions from 1990 levels, and 20% decreased primary energy use.  Is this a goal to which Korea, the U.S., and others should aspire?  Should we go further?

It is a lot to chew on, both for the energy outlook for Asia and at home in the U.S. as well.

-Lincoln Davies

July 23, 2011 in Asia, Climate Change, Energy, Law, Legislation, Sustainability | Permalink | Comments (1) | TrackBack (0)

Friday, July 22, 2011

Thinking About Biomass As Heat Hits the Northeast

On a day of record heat, with Newark hitting its highest temperature ever recorded (108!), the last thing that you want to think about, probably, is burning wood. Fireplaces, wood stoves, and wood furnaces are supposed to be winter topics.  But today you may feel like you are in a furnace, and an interesting saga in northern New Hampshire involving climate change, electricity regulation, and changing small-town economies merits some attention. 

Berlin, New Hampshire--an old pulp and papermaking town--shut down its pulp mill in 2006.  Many other mills in the region permanently closed their doors around this time, apparently due to a combination of low global demand for paper and rising costs of wood and chemicals.  Investors have since proposed to convert the plant into a wood-burning power plant--the Berlin Station Biomass Plant--but they have run up against several legal hurdles.

New Hampshire has a mandatory renewable portfolio standard, which requires electric utilities to "obtain and retire" a certain number of renewable energy certificates through 2025. This creates both opportunities and complications for renewable generators like the proposed Berlin plant, partially due to New Hampshire's system of regulating retail electricity rates--a system that many other states also follow.

New Hampshire became enthusiastic about restructuring its retail electric industry in the 1990s.  Indeed, one of Enron's first projects to encourage deregulation was in Peterborough, New Hampshire, where the then-nascent company set up an office in this small town and sponsored a town picnic , among other events and give-aways, to tout its electric choice program for residents.  Although retail electric service in New Hampshire has been partially restructured throughout the state, allowing consumers to choose their supplier of retail electricity (the electric distribution company), the New Hampshire Public Utilities Commission still regulates the rates that the state's four electric distribution companies may charge in tariffs issued to each of the companies.  A tariff outlines the rules that an electric distribution company must follow (relating to providing service and cutting off service when customers fail to pay, for example), and it also includes a rate schedule that specifies the amount that the utility may charge customers per kilovolt-ampere or kilowatt-hour.  You can see the tariff for New Hampshire's largest electric distribution company, Public Service Company of New Hampshire (PSNH), here.

Because New Hampshire utilities operate under a Public Utilities Commission-approved tariff and must obtain PUC approval for recovering various costs through rates, they must follow certain steps in purchasing renewable energy as they attempt to comply with New Hampshire's renewable portfolio standard. One of these steps involves entering into a power purchase agreement (PPA) to buy power from a renewable source and having the Commission approve the PPA after determining that it is in the public interest.

And here, we finally return to Berlin, New Hampshire's retired pulp mill.  Cate Street Capital, a green technology investor, proposed to convert the pulp mill into a biomass plant, and Public Service Company of New Hampshire agreed in a twenty-year power purchase agreement to buy electricity from this new plant.  Where an electric generator and electricity supplier enter into a PPA in a state with a renewable portfolio standard, the PPA typically contains various provisions for renewable energy credits or certificates.  Predictably, the PPA included an "obligation to purchase renewable energy certificates," and the Public Utilities Commission approved the PPA.  Small, existing producers of electricity from biomass in New Hampshire objected to the Berlin biomass plant, and they challenged the PUC's approval of the PPA on several grounds.  One interesting argument was that the PUC could not approve a twenty-year PPA because the PPA included a renewable energy certificate obligation linked to a renewable portfolio standard that would only last through 2025--before the twenty years of the PPA were up.   For the "nine years beyond 2025," the producers argued, the PUC could not approve Public Service's cost-recovery obligations because renewable energy certificate requirements might be different for those nine years; costs might change.  The PUC rejected this argument, both at the motion to dismiss stage and on a motion for rehearing after the PUC had conditionally approved the PPA; the PUC determined that it had the authority to "levelize a projection of PSNH’s REC purchase requirements." 

The small biomass generators appealed to the New Hampshire Supreme Court and entered into negotiations with Cate Street Capital, where, according to the Manchester Union Leader, the small generators demanded their own long-term power purchase agreements with Public Service of New Hampshire in exchange for dropping their Supreme Court appeal.  The negotiations broke down for a time, but it appears that Cate Street may still attempt to move forward with the plant.

Underlying these legal skirmishes is, of course, the larger issue of whether wood-burning biomass plants are a good thing--whether they're good for combating climate change, reducing air pollution, and encouraging local jobs, among other issues.  Some environmental groups have argued that they are not carbon neutral.  On the other hand, they improve the quality of life in towns like Berlin, and they rely on a local, abundant, renewable resource (wood). On a hot day like today, I have trouble thinking clearly enough to decide where I come out on the issue.  Maybe I'll use it as a case study for my students this fall and let them decide.

-Hannah Wiseman

July 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Ongoing Uncertainties over One Year after the BP Deepwater Horizon Oil Spill

This week has highlighted the ongoing scientific and political uncertainties in the aftermath of the BP Deepwater Horizon Oil spill.  A new paper by a group of NSF funded scientists finds that hydrocarbon transfers from oil spills have different apportionments at depth than at the surface.  Meanwhile, the public conversation about how penalty money should be used continues this week with the reporting on a Senate bill introduced by a bi-partisan group of 9 Gulf State Senators which would give 80% of the funds to the states and ecosystem restoration. These juxtaposed developments reinforce the need to continue to make progress on the difficult regulatory challenges posed by offshore drilling and oil spills, a subject which is the focus of one of my forthcoming articles.

Hari Osofsky

July 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Fish Fight

This is pretty remarkable. 

- Dave Owen

July 22, 2011 | Permalink | TrackBack (0)

Thursday, July 21, 2011

Urban Stormwater is Really, Really Interesting

This might not have occurred to you.  Even if you teach environmental law, and therefore are generally fascinated with environmental law questions, urban stormwater doesn’t exactly leap off the page.  To me, until recently, it just seemed technical, dense, and a little obscure, and I didn’t understand it well at all.  Then, about two years ago, I stumbled into the world of stormwater law and haven’t wanted (or been able; I just spent the morning in a meeting to discuss some innovative new stormwater regulatory initiatives) to leave.  If you’re a professor, or a student looking for a research topic, or a professor helping a student find a research topic, I’d strongly encourage you to take the same step.

Stormwater 1 At their core, the environmental problems with stormwater are pretty simple.  In undeveloped landscapes, most precipitation infiltrates into the ground, where it tends to stay cool and clean.  It then flows slowly toward surface water bodies, which it then replenishes with a relatively steady supply of high quality water.  Or, if it’s intercepted by wells, groundwater provides humans with a reliable and fairly clean water supply source.  Either way, stormwater that enters the ground does good things for people and  the environment.  But when we develop, we build impervious surfaces—roads, roofs, and pavement—that prevent stormwater from infiltrating into the ground.  Now, rather than providing valuable services, that stormwater Stormwater 2 becomes a problem.  It flows rapidly into waterways, or, in many older cities, overtaxed wastewater treatment systems, picking up pollution along the way and causing all sorts of environmental degradation.  And after storms subside, when people want to pump their wells and aquatic ecosystems need  cool and clean recharge, not as much groundwater is available.

(both images are from the website of the city of Auckland, New Zealand)

These problems have a few features that ought to make them appealing to legal researchers.  First, they’re all around us.  Chances are very good that as you read this, you’re sitting in a watershed with a stream that doesn’t meet state water quality standards.  Or you’re in a city with a wastewater treatment plant that gets overwhelmed and dumps raw sewage with every heavy rainstorm.  Chances are also quite good that the building you’re sitting in, even if it’s your home, is contributing to that stormwater runoff problem, as is the parking lot or driveway where you parked your car, as are the roads you’ll drive on your way home, and as is the supermarket where you’ll stop to pick up groceries for your family.  Our familiar, daily landscapes, in short, generally don’t work for stormwater.   And chances are also quite good that someone in your town government is charged with spending a significant amount of time every day worrying about how to address these challenges.  If you live in a city, it may be an entire department, and state and federal interest also can be intense.

The second reason why urban stormwater is legally interesting is that it’s hard to regulate.  The legal landscape is complex, even by environmental law standards, with federal, state, and local governments all exercising significant authority.  Their programs fit together awkwardly, and no one, as far as I can tell, thinks the current system is entirely coherent, let alone ideal.  Figuring out how to reform that system is a challenge—stormwater is exactly the sort of dispersed, cumulative problem environmental law often struggles to solve—which is a headache for regulators but an opportunity for legal researchers.  And the field is rapidly evolving, with new initiatives constantly emerging from EPA, some of the more environmentally progressive states, and at the municipal level (for just a few examples, see here, here, or here), so there are many interesting models to study.

You might think a subject this interesting would have drawn lots of legal attention.  And there is some good stuff out there.  Wendy Wagner has an incisive article about EPA’s stormwater regulatory program (9 Chapman Law Review 191 (2006); I couldn't find a link).  Tony Arnold has written some excellent work (see here or here) about “wet growth,” a topic that includes and extends beyond stormwater management.  In 2008, the National Science Foundation produced an encyclopedic study of urban stormwater management; the study incorporates and builds extensively upon the analysis in Wagner’s article.  I’ve also tried my hand at the subject.  But the amount of legal-academic coverage doesn’t match the level of attention regulators, planners, scientists, and engineers are devoting to urban stormwater, or the amount of money our society spends on stormwater management.  And I’ve found that among the non-academics who work on stormwater management, there’s a real hunger for the kind of insight that legal-academic research can provide.  I’m sure I’m not the only one who, upon completing an article, wonders if anyone will actually read it.  With urban stormwater, I’ve learned, they will.

- Dave Owen

As a semi-related postscript, today’s New York Times has an interesting story about climate change adaptation and ecosystem restoration, with a little stormwater discussion thrown in.  It’s worth a read.

 

 

July 21, 2011 | Permalink | TrackBack (0)

A Disturbing End to My Search for Woodsy Owl

Last week, I mentioned that I was wondering about what happened to Woodsy Owl.  Since then, I have been looking high and low.  I regret to inform you, however, my search has uncovered Woodsy's untimely and tragic end.  While you will not find the following image on any U.S. government website today, a year or two you could have

Woodsy photo

You might ask, "Who thought of this?  Who gave the order to take out Woodsy?"  The culprit left his fingerprints--or should I say claw prints--all over the scene of the crime.  Who else would call for incineration but in doing so would also mandate the strict supervision of a Forest Service law enforcement officer?

Smokey-bear-extreme

Smokey!?  As Woodsy found out the hard way, it turns out that Smokey signs like this are more of a threat than they are a warning--fire dangers are extreme indeed!  Now that we see Smokey for what he is, I will admit that I have always thought it was a little fishy that he carried that shovel with him everywhere he went...  What are you burying over there Smoky?  We should have known.  Smokey, you are one twisted Ursus Americanus.  You act all civilized and caring in public, but it turns out that when you are out of the spotlight, you are just some kind of wild animal.

For a bird who made "give a hoot, don't pollute" his life calling, it is more than a little ironic that Woodsy's end was a plume of smoke that the Forest Service described as incineration.  

-- Brigham Daniels 

July 21, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 20, 2011

The Problem of the Prehistoric Refrigerator (and it's Neanderthal environmental law professor owner)

The other night I made my hourly (it seems) trip out to the garage Refrigerator 2 to get some scholarly clarity....ah-hem....Pepsi Max or some other equally caffeinated drink (why are my teeth so sensitive, by the way?). See, in my benevolence and high-minded environmental consciousness (please note sarcasm) I decided to keep the previous homeowner's prehistoric refrigerator, seen to the right (literally, Neanderthals kept frozen dinosaur meat in this thing).  It not only makes a great home for my summer stipend....er...caffeinated go-juice....but it also preserves the functionality of a still-working appliance and keeps it from unnecessarily entering the waste stream (why do we always feel we need "new" stuff anyway?).  Forget the fact that I don't need two refrigerators, the amount of extra electricity it consumes....look, just leave me alone.  Anyway, nothing brings the high and mighty environmentally unassailable down like reaching into the refrigerator for a Pepsi Max, only to discover that YOU - and YOU alone - are responsible for the Montreal Protocol. YOU kept the international community tied up with trying to fix the ozone layer during much of the 80's, rather than focusing on more important things like the harm caused to children by slap bracelets, or the amount of carbon fiber sequestered by Hammer pants, or [insert next cliche 80's joke here]. Alas, when I looked into the refrigerator, this is what I saw:

Refrigerator 1

My heart sunk.  No longer were CFC's a ghost of my youth or something "over there" in the less environmentally conscious developing world (sarcasm, again), but they were right there in my own d@!%, Bluebookin' garage. I was single-handedly harming public health and the environment by destroying the upper atmosphere. I felt like a villain in a Superman movie, and just knew he was going to swoop down, fly around the earth 100 times-a-minute to take us to a future where this evil dump truck of an appliance had finally blown a fuse. Or perhaps an upgraded "Refrigerterminator" would come BACK in time and eliminate the GE-1000 to save us all from a future ozone apocalypse.

In all seriousness - to the extent that this post can be serious - it did raise in my mind the issue of lag time on policies aimed at improving the environment. It is easy to wax poetic to students about how "we need to transition fast to energy star appliances....more fuel efficient vehicles..." and on and on.  Even when the prices are competitive with less environmentally friendly products, this simply isn't always so easy. It's also not clear that when pitted against the problems of consumption it is always so desirable. I spend a lot of time thinking about how we need to buy less stuff and use what we have longer so that we can lower our consumption rates, which would require 5 earths to sustain if the U.S. per capita rate of consumption went worldwide.  Yet buying a bunch of new stuff and discarding perfectly useable stuff is exactly what I promote when it comes to innovative new products that are better for the environment. 

The highlight of my law school career was having my 1994 Ford Ranger pick-up truck (I am from Alabama, after all) stolen right off the street.  Of the 250 (seriously) cars stolen in Durham that month (no joke), I am certain this had to be the theft that generated the greatest ridicule for this thief by his professional colleagues.  Why would anyone besides a broke law student want a 1994 Ford Ranger? Well, first it was paid for, and a second it still worked.  When the thief finally had a moment of lucidity, a month later (who waits a MONTH before deciding a 1994 Ford Ranger is not the vehicle for them!?.....ahhh, besides me that is?), he graciously deposited my vehicle behind a crack house. I paid my $500 to the wrecker company to get it back (it's Blue Book value [Kelley Blue Book, that is] was $900 - thank goodness I didn't file an insurance claim), and guess what....I still drive it today. I'll be Bluebooked if I'm getting rid of it till it croaks, nevermind it's gas mileage is about 20 mpg's these days. As for the fossil of a refrigerator sitting in my garage, I'm still on the fence. Do I send it to the trash heap, for my kids to figure out what to do with it, or keep it and have them simply apply stronger SPF? Tough call.

- Blake Hudson

July 20, 2011 in Air Quality, Food and Drink, International, Physical Science, Sustainability | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 19, 2011

Overallocation in RGGI

Last week I posted about the overallocation of pollution allowances in the Acid Rain Program. Another celebrated cap-and-trade program that suffers from overallocation is the Regional Greenhouse Gas Initiative (RGGI).

RGGI began in January 2009 with the participation of ten Northeastern and Mid-Atlantic states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The program was designed to cap the carbon dioxide emissions from about 250 power plants in those states at 2009 levels for the years 2009 through 2014. Then from 2015 through 2018 the cap declines 2.5% per year such that 2018 emissions would be 10% lower than 2009 emissions.

The problem is that the projected level of 2009 emissions (upon which all those caps were based) was way too high: 188 million tons. Actual 2009 emissions from the power plants were only 124 million tons (see a report here) -- far below the cap of 169 million tons that RGGI aspired to reach by 2018. Emissions in 2010 were 137 million tons (see a report here), a 10% increase over 2009 but still far below the 2010 and 2018 caps.

The result is a huge oversupply of allowances.  RGGI allowances are auctioned quarterly, and the overallocation is evident in declining prices and volumes of auctioned allowances. In the most recent auction, in June 2011, allowances sold at the reserve price, $1.89, and less than a third of the allowances offered were bid on and sold (see a report here). In contrast, in the first auction of 2009, the average bid price was $3.51, and the demand for allowances was 2.5 greater than the supply (see chart here).

Now, as you might have heard, overallocation isn’t the only problems that RGGI is dealing with. New Jersey and New Hampshire have threatened to pull out (here and here), and a lawsuit is pending that challenges New York’s participation (for a link to the complaint and a good summary of recent developments see here).

All of this goes to show the difficulty of designing an effective cap-and-trade program. The European Union Emissions Trading Scheme (EU ETS) provides a good example of the type of active management and reform that seems necessary for a successful program. More on that next week…

- Lesley McAllister

July 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Kids Killing the Invasive Species That's Eating the South

Kudzu-coverall-2 Kudzu-car

We hear so much about the perils of invasive species, their spread, and the havoc they wreak on our native environment.  It is great to hear of citizens actually doing something  about it - and young citizens at that. The short video below details the innovative approach of one young man from Georgia, who has invented a process of eradicating kudzu, commonly referred to as "the vine that ate the south." He injects the ground where kudzu is growing with helium, which kills the kudzu but leaves the other plants perfectly in tact and in good health. Now if we could enlist some youth from the south to inject some common sense into the craniums of Floridians who release their pet pythons into the Everglades, the South's invasive species problem would continue to improve.

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- Blake Hudson

July 18, 2011 | Permalink | Comments (0) | TrackBack (0)

In Case You Missed It - The Week of July 10-July 16

* Following up on its earlier final rule expanding controls on interstate air pollution, EPA proposed to include six additional states in its summer nitrogen oxides program (nitrogen oxides are important ground-level ozone (smog) precursors)).  The states are Iowa, Kansas, Michigan, Missouri, and Wisconsin.

* Australia moved forward on enacting a carbon tax (Blake Hudson's post on our blog and Climate Progress).

* A move to repeal the federal mandate to increase the energy efficency of light bulbs failed in the U.S. House of Representatives (legal planet).

* The Brookings Institute released a major study on the "clean economy."  A summary and links are available here.

* American Electric Power Company scrapped what had been the country's largest carbon sequestration research project.  As an un-named "senior Obama Administration official" explained to the New York Times, "this is what happens when you don't get a climate bill."

July 18, 2011 | Permalink | TrackBack (0)