May 13, 2011
Hydraulic fracturing science: what the latest study does (and doesn't) appear to tell us
For those who did not see the article link on the Environmental Law Professors listserv, four Duke scientists have published a study in the Proceedings of the National Academy of Sciences that addresses possible connections between natural gas extraction (through drilling and hydraulic fracturing) and methane contamination of shallow groundwater in the Appalachian region. The study concludes that groundwater in areas with gas extraction activity has higher concentrations of thermogenic methane--methane from deep formations--than does the groundwater in areas without extraction activity. On average, the methane concentration in water wells sampled in the active extraction areas was seventeen times higher than the concentration in inactive areas. Most importantly, the study finds that "gas-phase transport of methane upward to the shallow groundwater zones sampled" may be occurring, suggesting that drilling and/or fracturing--not just naturally-occcuring methane around the groundwater--could be contributing to the methane contamination. The study cannot, however, pinpoint the exact causal mechanism for this apparent upward migration of methane. The most likely source of the methane in groundwater, the authors conclude, is gas that is transported in gas phase from shale formations to groundwater. Alternatively, "gas-rich solutions" from deep formations could be physically displaced in the extraction process and migrate upward to water, but the authors believe that this is unlikely. Secondly, "leaky gas-well casings" may allow methane to escape and to travel laterally and/or vertically to groundwater. Finally, hydraulic fracturing could expand fractures beyond the formation targeted by the fracturing. Then, according to the study, "The reduced pressure following the fracturing activities could release methane in solution, leading to methane exsolving rapidly from solution, allowing methane gas to potentially migrate upward through the fracture system." The study finds no evidence of brines or fracturing fluids contaminating groundwater. It concludes--unsurprisingly--that "[m]ore research is needed."
May 12, 2011
The Saga Continues . . .
Twelve years ago to the month, my wife and I stood in a long line at the classic Uptown Theater in northwest Washington, D.C. to see the much-anticipated Star Wars: Episode I The Phantom Menace. Whatever your view is of that movie, Jar Jar Binks, or the science fiction genre in general, for me The Phantom Menace evoked a very particular response. Having come to film as a child largely on repeated viewings of the VHS copy of the original Star Wars my father had made for me when it aired on network television -- the commercials almost, but not quite, perfectly cut out by the pause button -- The Phantom Menace left me awestruck by its effects, struggling with its disconnection from the original trilogy, and certain of only one thing: there would be more.
If anything was clear at the end The Phantom Menace, it was that there would be another installment of the Star Wars enterprise. The story would go on. The saga would continue.
Those who have been following the story of high-level nuclear waste in the United States must be feeling the same thing this week, as yet another installment of the saga that is Yucca Mountain was revealed. While Congress is investigating the Nuclear Regulatory Commission's delay in issuing a final decision on the Department of Energy's withdrawal of its permit application for Yucca, this week the Government Accountability Office released a report examining what motivated DOE's decision to withdraw its application in the first place. The GAO report is critical enough of the DOE that it is accompanied by a 14-page letter from the Department asserting, in part, that "some" of the GAO's "conclusions are based upon misapprehensions of fact."
A few highlights from the GAO report:
- "DOE’s decision to terminate the Yucca Mountain repository program was made for policy reasons, not technical or safety reasons."
- "After decades of effort and nearly $15 billion in spending, DOE succeeded in submitting a license application for a nuclear waste repository. However, since then, DOE has dismantled its repository effort at Yucca Mountain and has taken steps that make the shutdown difficult to reverse."
- "DOE undertook an ambitious set of steps to dismantle the Yucca Mountain repository program. However, concerns have been raised about DOE’s expedited procedures for disposing of property from the program . . . In addition, DOE did not consistently follow federal policy and guidance for planning or assessing risks of the shutdown. Some of these steps to dismantle the program will likely hinder progress if the license application review process resumes—should NRC or the courts require it."
- "[There are] two broad lessons for developing a future waste management strategy. First, social and political opposition to a permanent repository, not technical issues, is the key obstacle. Important tools for overcoming such opposition include transparency, economic incentives, and education. Second, it is important that a waste management strategy have consistent policy, funding, and leadership, especially since the process will likely take decades."
May 11, 2011
Stop Subsidizing Stupidity
At the end of April, Speaker John Boehner told ABC News that he would be open to reevaluating billions of dollars of subsidies received by the largest oil companies. "It's certainly something we should be looking at," he said. "We're in a time when the federal government's short on revenues… They ought to be paying their fair share."
President Obama and many in Congress seized on his remarks and renewed calls to end subsidies for big oil (see statements by Minority Leader Nancy Pelosi and Majority Leader Harry Reid as examples). For many, ending these subsidies does not just make economic sense, it also makes sense from an environmental perspective. While Speaker Boehner has since tried to distance himself from his comments, in the days following his statement, some in Congress used the political attention created by his words to rally around a proposal that President Obama has had on the table for some time: cut oil subsidies and divert that funding to promote renewable energy and other policies that would reduce the United States’ reliance on fossil fuels.
Yesterday, a number of Senators made another push to reduce oil subsidies by proposing to repeal $21 billion in tax incentives over 10 years for the five biggest oil and gas companies (ExxonMobil, Shell, BP, ConocoPhillips and Chevron Texaco). Unlike the President's idea to divert money from oil to clean energy, the Senators’ proposal would use the saving to reduce the federal deficit.
While the proposal to cut oil subsidies is by no means new, the tack of using the money to reduce the deficit has promise given the day’s broader political discussion focused on the debt and the deficit. Oil subsidies, however, represent just one of many sorts of subsidies that deserve rethinking; the government subsidizes all sorts of things that exacerbate environmental problems. In terms of political feasibility, perhaps current political pressures will provide avenues to make environmental progress by ridding ourselves of some of these harmful subsidies, particularly those that go to thriving corporate giants. Given that the debt and the environment both deserve our attention, in my opinion this sort politics in Washington is long overdue.
-- Brigham Daniels
May 10, 2011
Too-Big-for-Environmental-Law-to-Deal-With (?), Part 2: The Production Process
The economist John Kenneth Galbraith once wrote that “[n]othing in American business attitudes is so iniquitous as government interference in the internal affairs of the corporation.” J. Galbraith, THE NEW INDUSTRIAL STATE 77 (1967). Note the strong word: iniquitous. Iniquity means “wickedness" or "gross injustice." This is indeed a serious issue for American business.
Galbraith’s observation leads well into what I perceive to be another wall or barrier that environmental laws (and scholars of environmental law) come up against: the industrial production process. Instead of being able to focus on how production processes may be resource-intensive or otherwise environmentally-harmful, our environmental laws are often limited to just dealing with their waste outputs. A few examples:
- As exemplified in the early Clean Air Act case National Lime Assn v. EPA (DC Cir, 1980), the EPA has limited ability to influence the inputs to the production process when writing standards. Rather, government has to take the industry as is, setting standards that conform to the way the industry produces. The question for the regulator is not: How could you produce this product in a way that reduces pollution? But rather: Given that you produce it in this way, what is the level of pollution control required?
- The Pollution Prevention Act is in some ways bold and innovative, but it is does not mandate pollution prevention. Why not? Perhaps because it cuts to close to interfering in the internal affairs of the corporation.
- Under the Resource Conservation and Recovery Act, the producers (or generators) of hazardous waste are only lightly regulated. Extensive litigation about what is or is not “discarded” has also limited the government’s regulatory reach with respect to those facilities that engage in the treatment, disposal and storage of hazardous wastes.
- The federal environmental law that had the potential to most affect (or interfere with) the industrial production process is the Toxic Substances Control Act. It has been a failure and reform is currently on the legislative agenda. In 2009, the Government Accountability Office included “transforming EPA’s processes for assessing and controlling toxic chemicals” on a list of 30 high risk areas in government operations. That means it is an area of governmental action that is not working well and has important implications for the country’s economic and political well-being. Another high-risk area identified in 2009 was “modernizing the outdated US financial regulatory system.”
I find myself wondering the following: How far can an environmental law framework that has internalized American business's moral repugnance to governmental interference in production processes take us towards an environmentally sustainable economy?
- Lesley McAllister
May 9, 2011
If You Would Like to Help With The Southeastern Tornado Disaster Relief...
The most powerful tornado resulted in over 200 mph winds, was over a mile wide, and was on the ground for more than 132 miles. You can see the various tornado paths and their respective measures of destructive force here.
The path of the most deadly tornado was just a few blocks from the University of Alabama School of Law. Students at the law school have established a fund that, according to students at the school, "will be directed first toward law students and their families who have lost their homes, property, etc. Second, it will be used to fund our volunteer relief efforts (tools, bags, boxes, nails, food, water, etc.). And finally, the residual cash, if there is any, will be donated to the Red Cross, who will likely be set up here for the long term." The law school's SBA treasurer, Will Booher, has set up a Paypal Account for those who would like to donate via credit card. Having a Paypal account is not necessary to use this method of donation. You can access the donation link here.
- Blake Hudson