May 7, 2011
In Case You Missed It - The Week of May 1-7
* The latest study projects a sea level rise four times greater than the IPCC Fourth Assessment Report: New climate report confirms Arctic melt accelerating, sharply raises sea level rise projection (washingtonpost.com)
* The 9th Circuit rules that the U.S. Chamber of Commerce and the National Automobile Dealers Association don't have standing. See California's right to exceed federal auto emissions standards is upheld (latimes.com)
* The latest news on frog extinctions, noting that 40 percent of all amphibian species are in decline: Fungus killing frogs, S.F. State scientists find (sfgate.com)
* Lawsuits were filed in federal and state courts alleging that the government has failed to protect the atmosphere as a public trust. See Climate Activists Target States With Lawsuits (npr.org)
* The U.S. House of Representatives passed a measure that will force the sale of offshore drilling leases in the Atlantic and Gulf of Mexico but rejected a measure that would have ended billions of dollars in tax credits for oil companies (washingtonpost.com)
May 6, 2011
A Review of Some Oil and Gas Exemptions from Environmental Regulation
As hydraulic fracturing for natural gas continues to attract media attention, I thought that this would be a good time to review several of the major statutory exemptions enjoyed by oil and gas companies. The most substantial exemption, in my view, is the EPA's determination in 1988 that oil and gas exploration and production or "E&P" wastes should not be regulated under Subtitle C of the Resource Conservation and Recovery Act. When Congress enacted RCRA in 1976, the Act contained no oil and gas exemption. Congress eventually directed the EPA to study, though, whether certain oil and gas wastes should be regulated under Subtitle C or not, and after some foot-dragging and a lawsuit, the agency determined that the wastes--although some of them were hazardous--should be exempted. Specifically, the EPA's 1988 study, located at 53 Fed. Reg. 25,446, concluded that "23 percent of the statistically weighted sample sites generating produced water contain one or more of the toxic constituents of concern at levels greater than 100 times the health-based standards." More generally, the EPA found that between ten and seventy percent of the oil and gas wastes sampled (the percentages varied by type of waste) "could potentially exhibit RCRA hazardous waste characteristics." The EPA concluded, though, that imposing corrective action requirements, including on-site management of the wastes under RCRA, would result in "significant costs to the industry" and that "most existing State regulations are generally adequate for protecting human health and the environment."
The EPA conducted its RCRA exemption study before high-volume "slickwater" hydraulic fracturing in shales had fully emerged. Gas operators in the Barnett Shale did not perfect the slickwater technique, which uses large quantities of water mixed with smaller quantities of chemicals, until the late 1990s, so the EPA has never directly studied whether the several million gallons of fracture solution injected into a well--some of which flow back up and must be disposed of--have hazardous characteristics and might merit a reconsideration of the RCRA Subtitle C exemption. In light of this concern, the Natural Resources Defense Council submitted a rulemaking petition to the EPA in 2010, requesting that the EPA reconsider the 1988 RCRA exemption for oil and gas exploration and production wastes.
Another interesting aspect of the RCRA exemption is its reliance, to some extent, on non-mandatory guidelines that are intended to improve state regulations. Because the EPA recognized that some oil and gas exploration and production wastes were hazardous when it exempted them from RCRA Subtitle C regulation, the agency noted that some gaps in state regulation needed to be filled. As a solution, the agency gave money to the Interstate Oil and Gas Compact Commission to review state regulations, and the IOGCC formed something called the State Review of Oil & Natural Gas Environmental Regulations, Inc., or "STRONGER." STRONGER brings together representatives from industry, state environmental agencies, and environmental groups to review the efficacy of state oil and gas regulations, but STRONGER is of course not a regulatory agency. After reviewing the adequacy of regulations--including recent reviews specific to hydraulic fracturing--STRONGER develops non-mandatory "guidelines" for better state laws. In evaluating whether the RCRA exemption is a good idea, we should therefore look both to the data and assumptions behind the EPA's 1988 exemption decision and to its assumption about how states would improve their laws by, for example, following STRONGER recommendations.
A second important oil and gas exemption in federal environmental law is the exemption of uncontaminated sediments from oil and gas construction sites from National Pollutant Discharge Elimination System stormwater permitting requirements. The EPA has a useful website that summarizes several aspects of this exemption, including: its original text; Congress's attempt to expand the exemption to most oil and gas construction, exploration, and production activities in the Energy Policy Act of 2005; and subsequent litigation that has somewhat narrowed this attempted expansion.
Third, oil and gas operators do not need to prepare annual toxic chemical release forms under the Emergency Planning and Community Right-to-Know Act. (42 U.S.C. 11023 describes the Standard Industrial Classification codes to which the reporting requirement applies, and oil and gas drilling do not appear to fall within the SIC codes covered.) Oil and gas operators must keep material safety data sheets on site under Section 311 of EPCRA, however, and must provide the MSDS to local emergency planning committees upon request. EPCRA specifically allows the operators to claim trade secret status for chemicals when providing MSDS to local emergency planning committees.
Finally, the process of fracturing itself is not regulated under the Safe Drinking Water Act. The EPA had long maintained that hydraulic fracturing did not count as "underground injection" under the Safe Drinking Water Act--a position that the Legal Environmental Assistance Foundation successfully challenged in Alabama--and Congress formally affirmed the EPA's position in the Energy Policy of Act of 2005, in which Congress declared that hydraulic fracturing (unless the fracturing used diesel fuel) did not fall under the SDWA definition of underground injection. This exemption means that oil and gas operators need not obtain a permit for an underground injection control (UIC) well prior to fracturing. Interestingly, a report recently released by Representatives Waxman, Markey, and DeGette concludes that some of the major fracturing companies injected approximately thirty million gallons of diesel fuel "or hydraulic fracturing fluids containing diesel fuel" into fractured wells between 2005 and 2009. It is not clear whether these companies obtained a UIC permit for this fracturing. The report that reveals the use of diesel fuel is also interesting because several of the major fracturing companies signed a memorandum of agreement with the EPA in 2003 stating that they would not use diesel fuel in fracturing. (The memorandum is no longer available online, but the EPA's press release about the memo is still available.)
In sum, oil and gas companies operate under several substantial exemptions from federal environmental laws. As the Ground Water Protection Council likes to point out, many other federal laws still apply. A company wanting to discharge wastes into a river, for example, must obtain an NPDES permit under the Clean Water Act. Oil and gas companies also must comply with the Endangered Species Act and OSHA regulations, among many other federal laws. But the exemptions should not be ignored, particularly as states, and groups of state regulators such as the Ground Water Protection Council, argue that state regulations adequately control hydraulic fracturing risks. If we continue to rely substantially on states to control the risks, we should ensure that state regulations are sufficiently robust.
May 5, 2011
Yucca in the Crosshairs
When I teach administrative law, we start the semester with one of the primary lessons of the course: "Everything in administrative law is political." The same, often, can be said about energy law. Our policy, our decisions, the directions we head on the nation's energy landscape are driven as much by politics -- interest groups, ideology, inertia -- as they are by reason, calculus, and a careful assessment of costs.
This is perhaps nowhere more true than with nuclear energy. The political storm that surrounds that resource is on full display again this week. As I posted previously, the House Energy and Commerce Committee has begun investigating the Obama administration's decision to (depending on your perspective) mothball or permanently shutter the Yucca Mountain project, which was originally slated to serve as a long-term storage facility for spent nuclear fuel.
Yesterday, the Committee held hearings on the matter and sparks flew. The heart of the hearing was why the Nuclear Regulatory Commission has not yet acted on the Department of Energy's request to withdraw its permitting application for Yucca. A prior decision by the Atomic Safety and Licensing Board ruled that DOE lacked the authority to withdraw its application. That decision, however, is subject to review by the full NRC.
The implication by Republican lawmakers is that Chairman Gregory B. Jaczko, who was appointed by President Obama, has bowed to the administration's -- and his former boss's, Harry Reid (D.-Nev.) -- will by stalling issuance of the Commission's appellate decision. A tied vote by the Commission would mean that the Board's decision stands, and other commissioners stated that they had given their votes last year.
A few highlights:
- Rep. Lee Terry (R-Neb.) called the NRC "the most secretive agency on Capitol Hill.”
- Rep. Joe Barton (R-Tex.) suggested that Chairman Jaczko was "foot-dragging . . . because he thinks on June the 30th" the Commission will have a different makeup.
- Rep. Morgan Griffith (R.-Va.) said it appears "from the outside" that the NRC is attempting to stall "until somebody comes along that agrees with you more than apparently whatever votes you got behind the scenes."
Yucca thus now may have officially earned the moniker "energy law's political yo-yo of the century." No other project is as critical to the future of nuclear energy in this nation, and no other has been as stalled, delayed, debated, wrangled, or fought over. It is, as politics so often are, truly up and down.
Or, as Rep. Terry asserted about the NRC itself, "this is a politically run organization now."
That sounds just like administrative -- and energy -- law to me.
May 4, 2011
Seeing Environmental Law
A recent post by Blake Hudson reminded me how much photos can help teach environmental law. With this in mind, over the past couple of days I have been pulling together some resources that I hope will improve my next environmental law class.
One resource that I do not use nearly as much as I should is Google Earth. Google Earth seems tailor-made for environmental law professors. In fact, Google's most recent campaign to get people to try the product is "Take a virtual tour of the California coast redwoods." Could they be speaking to people like me more clearly? I guess the ad could read "Take a tour of the redwoods the next time you teach natural resources," but that is nitpicking, isn't it? It is not just the redwoods either. To bring the point home, look at this aerial shot of some place very different from the redwoods--Love Canal:
The picture is great at telling the story of Love Canal's CERCLA remediation: it has been abandoned. If you look closely at the picture, you can see that what appears an open field is actually the remnants of a neighborhood. If one wants to take the story to the next level, Google Earth can help with that too. The program allows users to upload photos and share them with anybody interested. These photos are good at giving us more refined glances at Google's aerial shots. Here is one of several shots of Love Canal, taken from near 100th Street:
The field used to be a neighborhood. The fence is meant to keep people off the remediation site. The street is no longer used and is in disrepair.
Additionally, I occasionally I show my students youtube videos. Sticking with the Love Canal Theme, here is a video of Lois Gibbs discussing her experience with the Love Canal disaster.
Lastly, I often use federal government websites to find photos because these websites often explicitly permit people to use their photos for educational purposes. Perhaps the largest repository of photos the federal government has is the National Archive. Its Archival Research Catalogue includes thousands of photographs that are available digitally. (Be warned, however, the search engine does not work very well on the site. I would actually recommend doing a site specific Google search instead of the catalogue's search engine). Here is one of my favorite pictures I have found in the national archives--Dead Horse Point in Utah, my home state:
I think that to understand environmental law sometimes, you need to see it. You need to somehow experience the things at stake, not just read or talk about them. I am trying to find ways to help my students do that. As I am rethinking my approach to environmental law for the upcoming year, I would be interested to hear what resources you use or would recommend.
-- Brigham Daniels
May 3, 2011
Too-Big-for-Environmental-Law-to-Deal-With, Part 1: Education
Over the next few weeks, I’d like to explore a set of issues that are critical to environmental protection, but that environmental legal scholars tend to have little purchase on. In my experience, these issues often get raised in class discussion but are essentially dead ends for discussion for the very reason that we, as law professors and law students, aren’t equipped to say much about them. Even though they are absolutely key to the success of our environmental laws, they seem to be outside our realm.
The first issue of this sort I’d like to highlight is education. Have you had that conversation with students about why popular polls show that many US citizens don’t believe in climate change? I have, and one of the discussion points often raised is that US citizens don’t understand science because our education system is failing. We are all aware that studies have shown that the US education system has fallen behind many other countries (most notably, China), particularly in science. So we all nod our heads and say yes, that is part of the problem. But there’s not a lot more to say.
I don’t have a solution for dealing with this too-big-to-deal-with issue. I feel it lurking there, and as a scholar of environmental law, I wish I could address it in some way because it really does matter. But then I’d seemingly be outside my field, and while I consider myself quite interdisciplinary as legal scholars go (engineering undergrad and social science doctorate), I do feel some limits.
Stay tuned this month for more too-big-to-deal-with issues (e.g. consumption, capitalism, inequity, and more)!
May 2, 2011
Ron Burgundy on Land-use-driven Contamination
Brian Fantana: I think I was in love once.
Ron Burgundy: Really? What was her name?
Brian Fantana: I don't remember.
Ron Burgundy: That's not a good start, but keep going...
....and put it in the environmental context...
Brian Fantana: I grew up in a bucolic little town in Colorado.
Ron Burgundy: Really? What is it's name?
Brian Fantana: Leadville.
Ron Burgundy: That's not a good start, but keep going...
I had this strange thought as I passed a sign last week that seemed to indicate an exit for a town called Phosphate, Montana (though after a thorough review of Google Maps, I believe it merely demarks a road).
Of course, just west of this location is a town called Mineral, Montana, and a bit further north is Arsenic Creek in Augusta, Montana. And I had just driven through Smelterville, Idaho before entering Montana. Then there is Nitrate City, Alabama, Zinc, Arkansas and Molybdenum Mountain in Alaska. One also has the option to drive down Uranium Drive in Lewistown, Montana or Asbestos Road in Cleveland, Georgia.
It is apparent that these locations are so connected with past land use activities - even activities damaging to both the environment and human health - that the descripters of those activities live on.
Particularly interesting is the prospective and retrospective view of the federal/state balance of authority in addressing the ills brought on by mineral mining and other types of contamination associated with land uses. Much of this contamination is due to land use decisions that are the constitutional purview of state and local governments. In other words, state government land use laws are responsible for there being, even today, a thick layer of phosphorus on the bottom of Lake Apopka in Florida, a location where I recently fished. Yet cleanup of these sites, after contamination has occured, is the responsibility of the federal government.
The Upper Clark Fork River in Montana is the largest Superfund site in the United States, and includes an area stretching from Butte to Anaconda to Missoula, Montana. The mining and smelting activity in Butte resulted in significant contamination of the Butte Hill (pictured right), and contaminated land for a stretch of 120 miles.
One might say these activities, and the subsequent codification of these activities in the names of towns and roads, are from a time before we knew the ills of land use driven contamination. Yet land use activities associated with agriculture, for example, remain regulated (or not regulated) almost solely by state and local governments, and are channeling copious amounts of nitrates and phosphates into the streams and rivers of the Mississippi River basin. This basin drains 40% of the U.S. land base. In the aggregate, this runoff contributes to a variety of ills, even dead zones in the gulf - the actions of a farmer in Minnesota affects the fishing operations of a Louisiana fisherman.
Ultimately, it would be far more efficient to have greater inputs representing the interests of the nation as a whole into decisions which pollute our environment, rather than national taxpayers later paying to cleanup sites contaminated due to the apathy of local authorities. These inputs do not have to be prescriptive, though that may be one approach, but can be horizontal between state and local governments or bilateral with cooperative federalism or incentives provided by the federal government.
In the end, Clearwater, Florida, Clearlake, California, and Greenville, Alabama sound like far more appealing destinations than Leadville, Colorado or Arsenic Creek in Montana. Perhaps going forward the former names will be the descripters of choice for the natural environment that makes up our towns, streams and mountains. That would be, as Ron Burgandy would say, a "great story. Compelling, and rich."
- Blake Hudson
New Supreme Court Opinion on Water Law
Today the Supreme Court released its opinion in the case Montana v. Wyoming. This water law case presented the issue of whether, under the Yellowstone River Compact, an appropriator can use more efficient methods to disseminate water, so long as the appropriator uses the water to irrigate the same amount of acreage. The Supreme Court held that it could even if changing watering methods would reduce the amount of return flow.
The Court upheld the decision of the Court appointed Special Master--Buzz Thompson--and the decision cites among others David Getches and Mark Squillace, and the great textbook by Sax, Thompson, Leshy and Abrams.
The Court's majority was made up of seven Justices, with Justice Scalia dissenting and Justice Kagan not taking part in the decision. While I enjoyed seeing the names of law professors I respect in the opinion and enjoyed reading an opinion about water law, for me, the most memorable part of the opinion came from Justice Scalia's dissent when he refused to call the people of Wyoming Wyomingites and instead called them Wyomans. He did this, because, as he put it, "the people of Wyoming deserve better."
A more detailed summary of the opinion can be found here on SCOTUSblog.
-- Brigham Daniels