April 1, 2011
Radioactivity beyond the nuclear sphere
As concerns associated with the damaged reactors at the Fukushima Daichii nuclear power plant in Japan continue to emerge, other worries about radioactivity--although of a lower level--are playing out on U.S. soils. As I mentioned in an earlier post, a New York Times article published in March suggested that wastewater treatment plants are not adequately treating water that flows up from hydraulically fractured natural gas wells in Pennsylvania. According to the Times, this potentially insufficient treatment is problematic because the flowback water from fractured gas wells is slightly radioactive. As also mentioned in my earlier post, the Pennsylvania Department of Environmental Protection has since stated that tests of waters downstream of wastewater treatment plants proved that the water was safe. The EPA, however, states that "several sources of data . . . indicate that the wastewater resulting from gas drilling operations contains variable and sometimes high concentrations of materials that may present a threat to human health and aquatic environment, including radionuclides . . . ." and has demanded further testing. In Pennsylvania, most flowback water from fractured gas wells goes to wastewater treatment plants for disposal. Other states like Oklahoma, however, allow flowback waste to be "buried" or disposed of in a surface pit, although it is unclear how many gas drillers opt for these disposal methods in lieu of underground injection--a common disposal technique. (See Ok. Admin. Code § 165:10-7-24 (b)(3), (c)(1),(2),(5), and (7).)
Low-level radioactivity in flowback water from hydraulically fractured wells is not the only potential concern. Whenever an oil or gas well is drilled, solid materials called cuttings also come to the surface. These, like flowback water, may contain low levels of radioactive material--called "naturally occurring radioactive materials" or "NORM" wastes in the oil and gas world. The New York Department of Environmental Conservation has concluded that radioactivity from NORM waste poses little concern to workers (see page 5-30 of the link), but with the recent focus on radioactivity in flowback water, the safety of cuttings disposal might begin to receive more attention. Currently, many states allow drill cuttings to be buried on site, although regulations differ depending on whether the cuttings are contaminated with hydrocarbons and salts, and some regulations require a minimum distance between the buried cuttings and water. (See, for example, 25 Pa. Code 78.61; Code Md. Reg. 26.19.01.10 W; Ok. Admin. Code § 165:10-7-26.)
The radioactivity of flowback water from hydraulically fractured wells and drill cuttings from oil and gas wells is dramatically lower than that of nuclear wastes. Still, the thousands of new wells being drilled, combined with the several millions of gallons of water required to hydraulically fracture just one well--have begun to raise eyebrows. When sufficient quantities of materials with low levels of radioactivity are disposed of, the public begins to notice.
March 31, 2011
As the saga continues to unfold at Fukushima Daiichi, commentators continue to question what the disaster will mean for the future of nuclear energy. Numerous media outlets have extensive coverage, including at the Washington Post, the New York Times, the BBC, and Time.
This week's Economist has a particularly interesting article, "When the Steam Clears," which takes up the question from the international vantage. The article, in a way, begins with its conclusion: "Fear and uncertainty spread faster and farther than any nuclear fallout." Its point is clear. Whether one is on the nuclear energy bandwagon or not, perception matters terribly. And for an industry that, in the U.S. at least, has been largely stalled out for the immediate past decades, Fukushima is casting a rather long shadow.
More specifically, the article makes three observations worth highlighting:
- Nuclear is expensive. This is hardly revelatory, but the point The Economist makes with the fact is one often forgotten. It is worth remembering. As a result of nuclear's cost, most plants today are old: "[W]ith a median age of about 27 years and a typical design life of 40 a lot [of nuclear power plants] are nearing retirement."
- Nuclear is ubiquitous, if not dominant. Although the U.S. leads the world with over 100 reactors, we get about 20 percent of our electricity from them. Other nations take much more of their electricity from nuclear -- Germany at 26 percent, Japan at 29, South Korea at 35, Ukraine at 49, and, of course, France leading the globe at roughly three-quarters their total electric production. Still, the world average is much lower. "[N]nuclear power is much less fundamental to the workings of the world than petrol or aeroplanes. Nuclear reactors generate only 14% of the world’s electricity . . . ."
- Nuclear is not going away. While the disaster at Fukushima clearly has resurrected the specter of nuclear tragedy 25 years after Chernobyl and 30 post-Three Mile Island, even the dimmest of views on the technology has not stopped its continued use. Last week, with Fukushima still front page news, the Nuclear Regulatory Commission extended the license of one U.S. plant. And, as with many things nowadays, China is a leader. It is planning extensive nuclear expansion. "Though China, which has 77 reactors at various stages of construction, planning and discussion, has said it will review its programme in the aftermath of Fukushima, few expect it to stop entirely. China has a great appetite for energy, which will continue to grow."
Weighing these observations leads to a number of others that will certainly be in play as the fate of nuclear is considered, both here in the U.S. and abroad, in the aftermath of Fukushima.
First, virtually everyone will reevaluate plant safety because of Fukushima, and this may mean changes for both those already in existence and those planned to come online. The NRC has already said it will be taking a hard look in the U.S., and of course other countries have become even more skittish, as I posted two weeks ago. In any case, these (re)evaluations may well impact how much -- or at least how quickly -- new facilities are added to the grid. The massive stranded costs the companies that built plants in the U.S. in the 1970s and 80s faced after regulation kept changing cannot be far from the front of their collective minds.
Second, we still have not solved the largest stumbling block to using nuclear, whether that use is in its current proportion or an increased one. Long-term storage of high-level nuclear waste is a bugaboo. No state wants the waste. Yucca has dragged on for literally decades. Now it is unfunded. Meanwhile, there are already rumblings about whether the current de facto "solution" -- storing the waste at operating reactors, often in storage ponds -- should continue. None of those facts, or the questions they imply, are easy.
Third, if nuclear is going to be used, Fukushima only highlights the need to make the decision concsiously, openly, and democratically. As David Spence articulately observed yesterday on the envlawprofs email listserv, all energy options force tradeoffs. Fears associated with nuclear are persistent, whether they are accurate representations of its real risks or not. Compare the actual deaths and costs associated with nuclear over the past half-century with those of, say, coal, as Prof. Spence noted, and the factual (rather than perceived) assessment of risks may change. True, nuclear has clear downsides, but it has many advantages as well. As with climate change, if industry is going to continue pursuing nuclear as an option, clear signals are needed.
Right now, the legislative signals on climate change, in the U.S. at least, are muddled if not stalled out. Fukushima may have only the same effect for nuclear.
For an energy source that now provides one-fifth of our electricity, one wonders whether stalemate is the right answer. In a world where nuclear now faces multiple possible futures, that's a question we must ask.
March 30, 2011
Owen on Critical Habitat
Recently, Dave Owen posted his latest article, Critical Habitat and the Challenge of Regulating Small Harms, on SSRN (available here). He also recently accepted an offer to publish the piece in the Florida Law Review.
Of course, critical habitat has been a major topic of debate and an evolving aspect of Endangered Species Act law. Much of this debate, however, has often surrounded disagreements about policy and focused on how the Fish and Wildlife Service and the National Marine Fisheries Service ought to administer the law. Frequently however, focus on the how ought has been accompanied by the tendency to overlook the how are. Indeed, documentation of how FWS and NMFS actually administer the ESA is generally spotty at best.
Owen’s article makes significant inroads by providing some much needed missing empirical evidence, particularly evidence relating to how agencies treat their obligation to assure federal projects do not “result in the destruction or adverse modification of habitat.” He does this by gathering, coding and distilling an impressive collection of biological opinions (slightly more than 4000 opinions the agencies prepared between 2005 and 2009), reviewing judicial decisions, and through interviewing staff within FWS and NMFS.
Those with an interest in the administration of the ESA owe it to themselves to read the article. What better way to really understand critical habitat than by getting into the weeds?
-- Brigham Daniels
Position Opening -- Assistant Dean of Environmental Programs at Pace Law
The Pace University School of Law has posted an opening for its Assistant Dean of Environmental Programs. The Assistant Dean is responsible for directing the school's Center for Environmental Legal Studies (CELS).
Applicants should submit a resume and references to:
Professor Leslie Yalof Garfield
Chair, Search Committee
Pace University School of Law
78 North Broadway
White Plains, N.Y. 10603
The full job posting is below.
"Pace University School of Law (White Plains, NY) is seeking to fill one position, titled, Assistant Dean of Environmental Programs and Professor of Law for Designated Project or Service (Assistant Dean) for its nationally ranked Center for Environmental Legal Studies (CELS). This non-tenure track position offers the opportunity to direct one of the nation’s top Environmental Law Programs. The Assistant Dean reports to the Vice Dean for Academic Affairs, and will be responsible for the overall management and administration of the Center.
Working in conjunction with the environmental faculty, the Assistant Dean helps establish the overall direction for the Environmental Law Program and is responsible for developing new programs and projects and managing and coordinating the day-to-day undertakings of the Center. Those responsibilities include organizing lectures, colloquia and our National Environmental Moot Court Competition, as well as coordinating programs with the Environmental Litigation Clinic, Pace Land Use Law Center, Pace Center for Climate and Energy Law, Brazil-American Institute for Law and Environment (BAILE), and Pace’s Public Interest Law Center. The Assistant Dean also teaches in the program.
The ideal candidate enjoys creating and maintaining partnerships and relationships with other law schools and educational institutions, bar and professional associations, governmental agencies, civic and community associations and the private sector. We seek candidates with excellent administrative and management skills, in-depth knowledge of environmental law and the environmental legal community, and familiarity with academic institutions. All applicants should have a J.D. degree. Extensive legal and/or teaching experience in the area is a strong plus.
Pace is committed to achieving equal opportunity in all aspects of University life. Applications are encouraged from people of color, gays and transgendered individuals, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of our school.
Salaries and benefits, including domestic partner benefits, are commensurate with experience and performance.
Pace University School of Law is located in suburban White Plains, New York, in Westchester County, approximately 15 miles north of New York City. Pace’s reputation and strong financial aid and scholarship program attract extremely talented students from diverse backgrounds, from thirty-four states, and more than 15 countries. The Law School’s primary commitment is to providing its students with the skills, knowledge, and values necessary to be effective and ethical lawyers as well as community leaders. We offer the resources of a private, nationally-ranked university, tuition waivers for family members and an attractive benefits and compensation package."
March 29, 2011
A Historical Perspective on the AB32 Lawsuit
The folks at Legal Planet have done a great job discussing the California Superior Court decision, Association of Irritated Residents, et al. v. California Air Resources Board (available here), which enjoins further AB32 rulemaking and implementation until the Air Resources Board adequately considers alternatives to cap-and-trade.
I agree very much with Sean Hecht that the environmental justice groups’ challenge is an expression of their values, and more specifically of their concerns about both the efficacy and the equity of cap-and- trade as a regulatory instrument. The groups that filed this lawsuit, particularly Communities for a Better Environment (CBE), also strongly opposed the Regional Clean Air Incentives Market (RECLAIM) program, the cap-and-trade program instituted by the South Coast Air Quality Management District (SCAQMD) in 1994 to control the emissions of NOx and SOx from utilities and industrial facilities in the LA air district. As it turns out, their concerns were well-founded.
An important question early on in the RECLAIM rulemaking process was whether the program would achieve emissions reductions equivalent to those that would have been achieved under the direct regulatory approach that RECLAIM subsumed and replaced. Indeed, California Health and Safety Code Section 39616(c)(1) legally required RECLAIM to achieve such equivalence.
As CBE predicted in its comments on the draft RECLAIM rules in 1993, the RECLAIM program failed the equivalence test. SCAQMD found ways to claim RECLAIM was equivalent, but I think there was good lawsuit material there (where were you, CBE?). Allowances in the program were greatly overallocated, and only minimal emissions reductions were achieved in the program’s first seven years. Emissions weren’t reduced to manifestly feasible levels until RECLAIM experienced market failure with the California Energy Crisis in 2001 and SCAQMD pulled large polluters out of the program and ordered them to install pollution control equipment.
In the AB32 lawsuit, CBE argued that the court should find the AB32 Scoping Plan illegal on the basis that it hadn't shown that a cap-and-trade approach would be as effective in reducing emissions as direct regulation. However, the law was not as clear on this point as it had been in RECLAIM, and the court rejected this and other substantive challenges to ARB’s implementation of AB32. Rather, CBE prevailed in its procedural claim that ARB had not adequately studied alternatives to cap-and-trade under CEQA.
This history is nonetheless relevant. It shows that CBE and its allies have been watchful, serious and consistent in their concern about the efficacy and equity of cap and trade. And it shows that there are good historical reasons for demanding that ARB closely examine alternatives to a cap-and-trade approach. I, for one, would like to see a careful study of how the 1990s emissions reduction trajectory in the LA air district compared to the 1990s emissions reduction trajectory in all the other California air districts that didn’t adopt a cap and trade approach. I suspect that such a study would find that significant (negative) environmental effects resulted from SCAQMD's decision to adopt RECLAIM in the early 1990s.
- Lesley McAllister
March 28, 2011
Hari Osofsky on Diagonal Federalism and Climate Change
Hari Osofsky, Minnesota Law School, has posted a thoughtful and engaging article titled "Diagonal Federalism and Climate Change: Implications for the Obama Administration" on SSRN. The article is forthcoming in the Alabama Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
Osofsky provides a clear view of the complexity of crafting climate change solutions, specifically noting that:
"The complex interactions between and among governments around the world at an international level, other branches of government at a national level, and multiple governmental entities at subnational levels—all of which also interact with nongovernmental organizations, corporations, international organizations, and private individuals—pose an ongoing governance challenge for the Obama Administration."
Osofsky describes how these complexities in the U.S. manifest through a "diagonal federalism" framework, which incorporates public and private actors vertically at all levels of government (local, state, national and international) and horizontally within specific levels of government. Her article targets how the Obama administration can approach diagonal federalism in a way that "leads to the most effective climate policy," and how to structure the above-described complex interactions in a way that most effectively addresses climate change.
All too often, discussions of climate change response are focused on forging political will for regulatory action on climate or fleshing out what types of climate change responses would be most effective to curb carbon emissions (regulatory v. market-based, top-down v. bottom-up, e.g.). Osofsky's article highlights an often overlooked aspect of climate change response; that is, how to navigate complex domestic legal structures to effectively implement climate change policy if and when it is forged. It is easy to say that "nations should enter into an international agreement on climate" or "nations should establish markets to foster unilateral nation-state initiatives to reduce carbon emissions." It is another thing altogether to assess the much more difficult questions of how to achieve those policy goals on the ground. Osofsky's article takes an important and much-needed step toward tackling the latter, and often more difficult, question.
"Diagonal Federalism and Climate Change: Implications for the Obama Administration"
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal). After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for understanding how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policymaking. The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, nongovermental organizations, corporations, and government.
- Blake Hudson