April 22, 2011
More Hydraulic Fracturing Developments
This week has been a busy one in the world of hydraulic fracturing. Representatives Waxman, Markey, and DeGette released a report that describes "the types, volumes, and chemical contents of the hydraulic fracturing products used by the 14 leading oil and gas service companies." The report observes that between 2005 and 2009, the fourteen companies used 780 million gallons of more than 2,500 different hydraulic fracturing products, and these products ranged from common household chemicals to "extremely toxic" substances. Methanol has been the most "widely used" chemical. Much of this information already was available through summaries of chemicals used in Pennsylvania and New York, but this is the most comprehensive report to date and provides more specific information about the quantity of chemicals used than previous summaries have offered. The report concludes, for example, that "[t]he [fourteen] companies used the highest volume of fluids containing one or more carcinogens in Texas, Colorado, and Oklahoma."
Also this week, the Chesapeake Energy Corporation, the "second-largest producer of natural gas," suspended hydraulic fracturing operations in Pennsylvania after a natural gas well blowout "spewed thousands of gallons of fracking fluid into a nearby creek" and farm fields, according to Reuters and the Tulsa World.
April 21, 2011
Adler on Climate Adaptation and Drought
Bob Adler has posted to SSRN a fascinating new article on drought's role in climate change. Specifically, Prof. Adler argues that policy will need to shift how it balances the compassionate impulse to offer relief in times of disaster and the ways in which it encourages and discourages risky behaviors. Noting that we are already "committed" to a certain amount of climate change because of past greenhouse gas emissions, Adler concludes:
"[V]ulnerability increases with the frequency of the event, which decreases the recovery interval between disasters. The result will likely be a vicious cycle of relief and increased risk. Given the likelihood of this scenario, perhaps a more 'compassionate' approach is to implement systemic policies to reduce vulnerability to climate-induced disasters by increasing the sustainability of various economic sectors in advance." To demonstrate what changes we might make, Adler uses the agricultural industry, though there are of course applications to numerous other economic sectors.
Adler's article is an important addition to the climate change literature, in particular because it adds to the growing discourse on climate adaptation -- and the increasingly clear consensus that we need both climate change mitigation and adaptation. The focus on water is especially apropos given the close nexus between water availability and one of the key climate change inputs: energy production.
The article is Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law. It can be downloaded here.
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
- Lincoln Davies
April 20, 2011
If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?
During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.
Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”
I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?
Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.
Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.
As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.
-- Brigham Daniels
April 19, 2011
What a Nuisance: Climate Change and Climate Control
Oral argument has now been heard in the case of AEP v. Connecticut, with insightful initial reports out from Legal Planet and SCOTUSBlog. Meanwhile, I’ve been having some thoughts about why the notion that climate change is a nuisance may not be particularly convincing to the justices of the Supreme Court or many other Americans for that matter.
Of course, the Supreme Court did not spend its time this morning hearing argument about whether or not climate change is a nuisance. As I discussed previously, the questions presented were threshold questions: plaintiffs' standing to sue, statutory preemption of plaintiffs’ common law claims, and the application of the political question doctrine. But we all know that a judge’s views on the merits may influence her views on procedural issues.
A public nuisance is, as I teach my students, an "unreasonable interference with a right common to the general public." Plaintiffs’ argument on the merits is essentially that the emissions from the nation’s largest powerplants interfere unreasonably with the public’s right to climate stability. But is this the day-to-day experience of Americans? Isn’t our day-to-day experience instead that these emissions contribute in a positive way to the types of climate stability that we are most aware of? These emissions enable our climate-controlled homes and offices. They enable us to live and work comfortably on bone-chilling winter days and scorching-hot summer days. Emissions from energy use also enable us to transport ourselves from place to place with little awareness of terrain, weather, distance, or changes in altitude. We buy more-than-plenty food at the grocery store regardless of soil quality, rainfall, and other climate-related growing conditions.
So, here is an irony: climate change is caused by climate-control and other energy-intensive practices that allow us to ignore changes in climate. Our energy use makes us disconnected from the climate and keeps us from recognizing the critical importance of climate stability. In other words, our energy use prevents us from seeing just how great a nuisance climate change actually is.
- Lesley McAllister
April 18, 2011
Sarah Krakoff on "Planetarian Identity Formation and the Relocalization of Environmental Law"
Sarah Krakoff, Colorado Law School, has posted an intriguing article titled "Planetarian Identity Formation and the Relocalization of Environmental Law" on SSRN. The article is forthcoming in the Florida Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
In a time of rapid globalization, Krakoff provides refreshing insights into the resurgence of localism regarding environmental issues, specifically in the context of climate change. Krakoff assesses a model in which society prepares itself to mitigate and adapt to climate change, regardless of whether the state is or is not successful in "prodding" individuals to act. She also clearly describes what we, and the state, can learn from local initiatives to tackle climate change.
In doing so, she grapples with the realistic concern that despite important local action on climate, communities very well may fall short in their efforts if steps are not taken by other levels of government, especially since climate change is the "mother of all collective action problems." Krakoff further assesses the political and psychological barriers to breaking through to the world citizenry regarding the urgency of the climate change problem.
Despite localism not being a silver bullet solution, Krakoff provides analysis often overlooked by scholars. She provides a unique level of detail regarding just how much local action occurs at levels more local than even municipalities - which is beyond what conventional scholarship often considers meaningful local action. Krakoff details first-hand interviews with formal local groups aimed at tackling climate change - called "Carbon Rationing Action Groups" - as well as more informal groups called "Neighborhood Climate Action and Sustainability Groups."
Ultimately, Krakoff's article is an engaging critique that manages to weave in the philosophical perspectives of the likes of Aldo Leopold, Wendell Berry, and Elinor Ostrom while at the same time providing an extremely practical guide to the role of localism in climate change mitigation and adaptation. Krakoff's thesis rings true in her statements that "there will be no solution to the world's environmental problems if we fail to focus on the livelihood and well-being of local communities throughout the world" and that "if we overemphasize the state's role at the expense of the role of the local law of climate change, we come away bored, despairing, apathetic, or all three."
"Planetarian Identity Formation and the Relocalization of Environmental Law"
Local food, local work, local energy production – all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are two-fold, and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to reign in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the vicissitudes of a post-climate changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.
- Blake Hudson