Friday, April 15, 2011

When Threatened Regulation Leads to Innovative Private Response

On April 12, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission announced the opening of a new and innovative website ( that reveals the specific chemicals that twenty-four hydraulic fracturing ("fracing" or "fracking") companies use in oil and natural gas wells around the country.  This is an important and interesting development.  Several states require fracing companies to disclose the chemicals that they plan to use in a fraced well in their permit applications or to reveal the actual chemicals used in a well completion report.  These agencies have, in turn, published general lists of the more than 250 unique chemicals that producers potentially use in fraced wells in their state, but this tells a member of the public little about the specific handful of chemicals that may be mixed with water and injected at any given site.  It appears that only a minority of state agencies, such as those in Wyoming and Arkansas, have made more specific information about chemicals used at fraced wells available to the public.  Further, although the public may currently request material safety data sheets from local emergency planning committees under the Emergency Planning and Community Right-to-Know Act, EPCRA allows those entities submitting material safety data sheets to claim trade secret status for the chemicals that they are supposed to disclose. 

The new website that discloses fracing chemicals to the public is user-friendly and offers useful, detailed data. A user can search wells by state, which pulls up a long list of individual well sites; searches by specific well are also available. The user may then click on the well site and receive detailed information about the chemicals used there, including a description of the trade name of each product used at the well, the ingredients in the product and the ingredients' Chemical Abstract Service (CAS) numbers, the maximum concentration of each chemical in the frac fluid additive and in the full frac water-chemical solution, the "purpose" of the product, and the supplier.   The companies also disclose the total water volume used at each well.

According to the Tulsa World, "The two state coalitions behind the registry, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, are hoping to block federal oversight and keep regulatory authority at the state level."  Indeed, the federal government has recently ramped up attention to fracing.  The EPA is conducting a study of the impacts of fracing in shale on groundwater (at the direction of a House committee) and has subpoenaed companies that have refused to disclose chemical information requested as part of the study, while the Department of the Interior has proposed to require companies that frac wells on public lands to disclose the chemicals used to the public.  Congress, in turn, questioned officials this week about the safety of the practice and has proposed the "FRAC Act," which would also require public disclosure of fracing chemicals.  Whether the motivations behind recent voluntary industry disclosure through FracFocus are to keep regulation at the state level or simply to mollify the public, the website is an encouraging development.  Although certain chemicals on the site remain proprietary, the site provides a wealth of useful information.

-Hannah Wiseman

April 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Speaker Boehner Orchestrating Another EPA/Debt Showdown?

Following report comes from the Hill:

House Speaker John Boehner (R-Ohio) isn’t ruling out putting curbs on EPA regulations in play when lawmakers cast high-stakes votes next month on raising the federal debt ceiling.

The House passed legislation last week that strips EPA’s power to regulate greenhouse gases, but the Senate rejected the measure and Republicans failed to graft temporary limits to spending legislation.

Asked at a Thursday press conference whether he expects the issue to be part of negotiations on the debt limit, Boehner replied that there have not been decisions yet about what’s on or off the table in the debate.

He added: “Clearly, the direction of the EPA and the direction they're heading with their numerous regulations are going to cripple our economy and cripple the ability of employers to create jobs.”

Congress is likely to take up a debt limit increase measure after it returns in May, so stay tuned.

-- Brigham Daniels


April 14, 2011 in Climate Change, Legislation | Permalink | Comments (0)

Cloudy, With a Chance of More Clouds

Drive by any large power plant, and you are bound to notice the obvious.  The facility announces itself long before you make its acquaintance.  Big power plants come with big transmission needs, so the wires emanating from the facilities always make a striking sight.

This is perhaps no more apparent anywhere than it is in nuclear power plants.  Because their generating capabilities are so large -- and their capacity factors so high -- the bundle of wires running from nuclear facilities is inevitably noticeable.  A good example, if you find yourself in the vicinity, is Southern California Edison's San Onofre plant.  Drive by on I-5, and you can't miss the mass of perfectly parallel lines overhead.

The image of precise bundles of wires is fitting, perhaps, because the exactness that the nation's electrical transmission circuits demand stands in sharp contrast to the many loose ends currently in the nuclear industry.  Prior posts have touched on some of these points, but the recent developments continue only.  Looking at it today, if we were all weather anchors on the local news, the only forecast we could offer the industry would be "cloudy, with likely more clouds on the way."

To wit:

  • The United States Court of Appeals for the Federal Circuit ruled last week largely in favor of the U.S. government in a case brought by Energy Northwest.  Energy Northwest's claim is for breach of contract for the government's failing to take its spent nuclear fuel, when Yucca Mountain remained non-operational.  The case is certainly notable for its ruling in favor of the government, but it may be even more notable for two other reasons.  First, the decision now stands with numerous other cases the government has lost as a result of the political stalemate over Yucca, as the DOE used a standard contract in promising to take utilities' waste under the Nuclear Waste Policy Act.  Second, Energy Northwest had won an award of nearly $57 million, but the government only appealed about $10 million of that award.  It let the rest -- $47 million -- stand.

  • The New York Times is reporting increased resistanceto the Jaitapur nuclear power plant proposed to be built in India.  If it goes forward, it will be the largest in the world.  If it does not, we will know that Fukushima's shadow can reach at least as far as this only growing, energy-hungry nation.

  • Meanwhile, in the U.S., the Nuclear Regulatory Commission has approved an increase in Exelon's Limerick Generating Station's capacity by about 32 MW.  Why?  Because in a nation that seems increasingly skittish about nuclear energy, we also need more energy.  Clouds, and more clouds.

-Lincoln Davies 

April 14, 2011 in Climate Change, Current Affairs, Energy | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

How We Cut and What We Cut

Today, President Obama in a speech set out a rough-sketch plan for how he would propose that United States make headway on its budget deficit.  There are certain to be many who disagree with him about his plan.  Speaker John Boehner, for example, made sharp criticisms that the plan does not go nearly far enough.  It is obvious that Obama’s plan could be attacked by both those that are further right and further left of Speaker Boehner.  Also, this speech seems to signal that Obama understands that—whether he likes or not—cutting the deficit will be a major issue during the next presidential election cycle.  Because of this, it is likely that those both on the left and the right will have ample time to make their case.

In contrast, this sort of conversation has largely been absent from the latest round of budget cuts used to round up a majority of those in Congress to fund the government for the remainder of the fiscal year.  In that process, we did not hear much from our leaders about what should be cut and what should not; about how much is too much and how much is not enough; and about the consequences—both in the short term and in the long term—of taking one path instead of another. 

Instead, what we saw was a series of political compromises that have gone on behind closed doors, with no public explanation or examination.  For example, as part of the recent budget compromise, as I already mentioned earlier this week, it seems that Congress has decided to remove the gray wolf from the endangered species list.  Recently, it also became clear that compromise entailed stripping funding from the Department of the Interior’s Wild Land Initiative, cutting federal funding to state greenhouse gas programs, and in fact substantial cuts in a myriad of additional environmental programs

Certainly cutting the deficit will enviably call for sacrifices.  That, in fact, is the reason that cutting the deficit is so difficult.  However, I find it disturbing that discussion and analysis of what we ought to do have been replaced by mere after-the-fact reports of deals that our politicians have struck.  While I believe that we need to take drastic steps to cut the deficit, these cuts should come from reasoned analysis and public debate.  If we are going to tackle the deficit, it will take real political leadership and courage.  This is an instance where adding to backroom politics just won’t cut it. 

-- Brigham Daniels

April 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

San Diego's Clean Energy Law Symposium

I just have to take this opportunity to announce the University of San Diego School of Law’s exciting Third Annual Climate & Energy Law Symposium this Friday, April 15.  In case you are not able to join us in person, the symposium proceedings will be posted and available for viewing online soon after the event.  This year's theme is “Advancing a Clean Energy Future,” and our spectacular set of speakers includes:

• Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission
• Karen Douglas, Commissioner and Former Chairman, California Energy Commission

Panelists and Moderators
• Sophie A. Akins, Best Best & Krieger LLP
• Lincoln Davies, University of Utah S.J. Quinney College of Law
• Kirsten Engel, University of Arizona James E. Rogers College of Law
• Robert L. Glicksman, George Washington University Law School
• Dian M. Grueneich, Former Commissioner, California Public Utilities Commission
• Jennifer A. Hein, NRG Energy
• Alexandra B. Klass, University of Minnesota Law School
• Richard J. Lazarus, Georgetown Law Center
• Michael Picker, Senior Advisor to the Governor for Renewable Energy Facilities, State of California
• Michael Reed, University of San Diego School of Law
• Jim Rossi, Florida State University College of Law
• Nilmini Silva-Send, University of San Diego School of Law
• David B. Spence, University of Texas at Austin McCombs School of Business
• Joseph P. Tomain, University of Cincinnati College of Law
• Steven Weissman, University of California Berkeley School of Law

The symposium is co-hosted by the University of San Diego School of Law’s Energy Policy Initiatives  Center and San Diego Journal of Climate & Energy Law.  Symposium papers will be published in the 2011 volume of the San Diego Journal of Climate & Energy Law

- Lesley McAllister

April 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Roy Gardner on "Lawyers, Swamps, and Money - U.S. Wetland Law, Policy, and Politics" (New Book)

Wetlands expert Roy GardnerStetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy.  The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.

Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised.  I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.

Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States.  Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.

Gardner book cover



Lawyers, Swamps, and Money

U.S. Wetland Law, Policy, and Politics

By Royal C. Gardner

Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.  

Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them.  Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

• the geographic scope and activities covered by the Clean Water Act

• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency

• the goal of no net loss of wetlands

• the role of entrepreneurial wetland mitigation banking

• the tension between wetland mitigation bankers and in-lieu fee mitigation programs

• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

- Blake Hudson

April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Gray Wolves Caught Up In Budget Compromise?

According to the New York Times, House and Senate leaders have agreed to include a bipartisan proposal to remove Endangered Species Act protections for gray wolves as part of a final compromise to fund the government through the end of the fiscal year.

UPDATE:  The LA Times Environmental Blog and Legal Planet have very informative posts about the congressional effort to revoke protections for the gray wolf.

-- Brigham Daniels

April 11, 2011 | Permalink | TrackBack (0)