March 25, 2011
As oil prices reach a two and a half year high, America's oil dependence--recently highlighted by the Deepwater Horizon disaster in the Gulf of Mexico--is once again apparent. About seventy-two percent of oil used in the United States is for transportation, and approximately ninety-four percent of our energy for transportation comes from oil; natural gas and renewable fuel sources provide only about six percent of the energy that flows to the transportation sector according to the Energy Information Administration.
When I teach the regulation of mobile source emissions in Environmental Law, I like to use transportation as an example of each individual's contribution to environmental problems. Emissions from industry and residential electricity production seem indirect; though we all buy manufactured goods and retail electricity, the collective emissions from these actions come from a distant source that is easy to ignore. When we fuel up at the gas pump and turn on the ignition, on the other hand, our individual impact is apparent. And the EPA reminds us of the consequences of fueling up, observing that "[i]n 2008, transportation sources contributed approximately 27 percent of total U.S. greenhouse gas emissions" and were the "fastest-growing source of U.S. greenhouse gas emissions, accounting for 47 percent of the net increase in total U.S. emissions since 1990."
In sum, transportation centrally contributes to America's oil-based woes and climate change problems, and we need to fix it. So far, we've made limited progress. In 2008, about 1.5 million light duty alternative fuel and hybrid vehicles were on the road. About 2,700 of these vehicles were electric, and about 325,000 were "gasoline-electric hybrid." The majority used ethanol as fuel.
Some would have us move quickly toward natural gas vehicles. On April 13, Natural Gas Vehicles for America plans to display a "wide variety of natural gas-powered vehicles (NGVs) from around the country" in Washington. With the surge in shale gas production, abundant quantities of low-carbon natural gas are domestically available. But if we are slowly moving toward an economy that relies on electricity from renewable energy, should we transform our fueling infrastructure to accommodate natural gas, only to replace this infrastructure with battery stations several decades later?
As with any environmental problem, there is no easy answer. And current oil prices do not appear to be moving us anywhere near the OPEC crisis of the 70s, where long gas lines inspired serious, although brief, policy changes. At minimum, the nuclear crisis in Japan, unrest in Libya, and gas prices at home will continue to highlight the energy-environment connection, at least in the short term.
March 24, 2011
Renewable Energy and the Common Law
Regulation of renewable energy is almost as old as the field itself. Who, for instance, doesn't want a t-shirt emblazoned with the logo "I <heart> PURPA"?
Clearly, the emergence of renewable portfolio standards, feed-in tariffs, net metering requirements, a "smart grid," and more, make renewable energy regulation a burgeoning field. This past January, the University of Utah law school hosted a symposium on "The Future of Energy Law," which touched on many of these issues.
Increasingly, though, there is an emerging scholarship on the intersection of the common law and renewable energy. How these legal developments shake out, too, will have important ramifications for our energy profile of tomorrow.
Three recent examples of this scholarship are worth noting. Or, as Professor Solum would say, "download them while they're hot!":
- Alan J. Alexander on The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest: "Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed to oversupply and rampant waste of oil. Similarly, lack of regulation of the developing wind energy industry could lead to wasteful practices regarding wind energy development. This Note argues that the Texas Legislature should pass laws clarifying that wind is a natural resource under the Texas Constitution, and that to promote [conservation and development], the Legislature should statutorily recognize wind rights as an interest severable from land ownership."
- Alexandra B. Klass on Renewable Energy and the Public Trust Doctrine: "This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance?"
- Troy A. Rule on Airspace in a Green Economy: "[A] growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land."
March 23, 2011
Red Risk, Blue Risk
A few months ago, Dan Kahan, Donald Braman, and Hank Jenkins-Smith published an important article titled, Cultural Cognition of Scientific Consensus (available here). The article looked at several risks, two of which are quite relevant to today’s news and environmental law: the risks associated with climate change and those associated with storing nuclear waste.
While I do not want to rehash all of the article’s findings, consider one of the article’s major conclusions:
When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information probative weight based on its consistency with her prior estimatio. Because of identity protective cognition (Sherman and Cohen 2006; Kahan et al. 2007) and affect (Peters, Burraston, and Mertz 2004), such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation (Kahan et al. 2009), she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation (Jenkins-Smith 2001).When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information its probative weight based on its consistency with her prior estimation. Because of identity protective cognition and affect, such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation, she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation.
In other words, one’s worldview alters risk perception in ways we would never anticipate. Our minds seek out and give greater weight to information that harmonizes with our worldviews. Interestingly and disturbingly, even when risks are very complex and difficult for non-experts to assess, non-expert brains often trust one's worldview even if it means disagreeing with the experts.
While the article presents a very convincing case, a few items in the news this past week seemed to reinforce the article’s findings for me. (Granted, the article has left me uneasily wondering if I am just reinforcing my own priors.)
First, a post on a political science blog called Monkey Cage (discussed in an excellent post by Dan Farber earlier this week) suggests that as education increases, liberals are more likely to see climate change as caused by human activity whereas, surprisingly, as education increases, conservatives are less likely to see climate change as caused by human activity.
Both the Monkey Cage and Farber’s post provide the following helpful graph to illustrate this finding:
Second, CBS News recently released a poll showing, among other things, support for nuclear power in decline. This is not too surprising given the recent failing of the Fukushima Daiichi Nuclear Power Station. Interestingly however, CBS’s data show that Democrats are more worried than Independents and much more worried than Republicans about risks associated with nuclear power.
It is a bit humbling to recognize that in addressing major problems like climate change even our perceptions of risks can be divisive.
- Brigham Daniels
March 22, 2011
Energy Efficiency on the Rebound?
Energy efficiency policy is one of the few areas where we might still expect some progress at the federal level toward reducing greenhouse gas emissions in the next few years. Predictably, energy efficiency has become the target of criticism. Republican senators argue that phasing out inefficient incandescent light bulbs is anti-consumer even though it would save consumers money on their energy bills. And in a New York Times article, John Tierney took aim at energy efficiency standards by implying that energy efficiency improvements don’t actually save energy on account of the “rebound effect.” The rebound effect expresses the idea that energy efficiency improvements result in a reduction in the price content of energy in the final consumer product or service, and consumers may respond to this cost savings by consuming more of that product or service (the direct rebound effect) or more of other products and services (the indirect rebound effect). This increased consumption negates the presumed one-to-one relationship between efficiency improvements and energy savings.
While theoretically plausible, the important question regards the actual size of the rebound effect. Tierney suggests that the rebound effect may swallow the energy savings of energy efficiency, but the available empirical evidence does not bear this out. The direct rebound effect has been much better studied than the indirect rebound effect (see Sorrell et al. 2009). In the transport sector, where the rebound effect has been most studied, the effect is likely to lie between 10 and 30%. In other words, 70 to 90% of the energy savings achieved by a more efficient car are actually saved (and not negated in the form of higher consumption). When more efficient heating is installed, about 80% of the energy savings remain intact. From my perspective, a 70 to 90% energy savings looks pretty good.
As for the indirect rebound effect, Sorrell et al. 2007 find that there are few published studies and that they are flawed. In other words, there is little empirical support for the indirect rebound effect. According to Sorrell it has two components: the embodied energy in energy efficiency improvements (the energy required to produce and install the measures that improve energy efficiency) and “secondary effects,” which refer to the change in demand for other goods and services spurred by energy efficiency improvements. From what I can tell, these secondary effects seem to amount largely to the idea that consumers will spend whatever money they have on something, and that something is likely to require the use of energy. While I can certainly see bemoaning the energy consumption of overconsumption (and I probably will in a future post), I just can’t see blaming it on energy efficiency.
- Lesley McAllister
March 21, 2011
Hunting, Fishing, Survival, Guns, Gear....and Environmental Protection?
You might expect an article titled "How the Budget Bill Will Decimate Conservation" to be found on the Environmental Defense, Greenpeace or a variety of other environmentalist websites. In fact, the article was posted at fieldandstream.com. When you search for "Field and Stream" on Google, the search heading reads "Hunting, Fishing, Survival, Guns, Gear." This is not the place conventional wisdom would suggest that you find an article criticizing recent Congressional proposals to slash the budget. The beginning of the article, however, sums up quite well the sentiment among conservationists who might also often be characterized as conservative:
"Unlike their counterparts at hard-line environmental groups, leaders of sportsmen's conservation organizations tend to measure their words. They avoid hyperbole, don't hyperventilate, and never hint that the sky is falling. That changed when they got a look at the budget priorities unveiled recently by the House of Representatives. Now they’re all looking nervously at the sky and using words like disaster, eviscerate, and destroy."
Last week I posted about Preserving Environmental Protection in a Down Economy, and how the current fiscal crisis creates difficult choices over the balance of government spending and environmental protection. The Field and Stream article is yet another example of how fiscal conservatism can often be at odds with conservation - even conservation supported by people who might under ordinary circumstances be categorized as fiscal conservatives.
The article highlights a point made last week that fiscal crises can sometimes cause the evisceration of needed environmental protections under the guise of fiscal necessity, noting that much of the budget bill's cuts "will not lower the deficit but simply take aim at environmental laws that polluting industries have opposed for years—laws that sportsmen's groups support because of their ultimate impact on fish and wildlife habitat."
Sporting groups have long been friends of the environment, often putting aside partisan politics when it comes to environmental protection - think President Teddy Roosevelt. Sporting groups are also a boon to the economy. As the article notes, "the federal government spends about $5 billion a year in conservation programs that are essential to the habitat that supports hunting and fishing, but it gets back about $14 billion in direct tax payments from people who make their livings in those industries--and that's a conservative estimate."
Ultimately, it would serve fiscal conservatives well to look to sporting groups' supported use of a scalpel instead of a sledgehammer when it comes to environmental protection. Professor Daniels' recent post about "Junk Politics" is nowhere more apparent as here, where fiscal conservatives demonstrate a lack of discernment over which government funded projects are waste and which ones serve a vital role in the continuance of our society. Sporting groups, with all their hunting, fishing, guns, gear and - perhaps most importantly - survival instincts, seem to discern the differences quite well.
- Blake Hudson