May 21, 2011
A New Environmental Law Journal
Cambridge University Press has announced a new environmental law journal: Transnational Environmental Law.
The journal will begin publication in Spring 2012. The journal will be peer-reviewed and "strive to develop a new generation of environmental scholarship which bridges geographical, generational, disciplinary and academic-practitioner divides," according to an announcement.
Its editorial team includes:
- Thijs Etty, VU University Amsterdam (editor-in-chief)
- Veerle Heyvaert, London School of Economics (editor-in-chief)
- Cinnamon Carlarne, University of South Carolina
- Daniel Farber, UC Berkeley, Boalt Hall Law School
- Jolene Lin, Hong Kong University
- Joanne Scott, University College London
The journal's website is http://journals.cambridge.org/TEL.
And here is a bit on their submissions and publication policies:
The Editors of TEL warmly invite the submission of manuscripts from scholars, lawyers and professionals active in fields related to environmental law and governance. Prospective authors may also contact the Editors with proposals for planned submissions. The Editors will also consider revised versions of previously released working papers, provided that such publication is clearly acknowledged upon submission of the paper for consideration to TEL.
All contributions in the journal are peer-reviewed (double-blind), and will be evaluated on their:
• Analytical thoroughness
• Affinity with the mission and scope of the journal
• Conformity with the highest standard of scholarly presentation
TEL will strive to respect a turn-around time of under 6 weeks between receipt of the manuscript and notification of acceptance, rejection or need for revision. All accepted work will be scheduled for publication in print and online. To reduce time between acceptance and publication articles will appear online as FirstView publications in advance of their scheduled publication in print.
May 20, 2011
The Thundercats on International (and Interstellar) Environmental Law
First of all, please do not ask me how I came upon this particular section of a Thundercats episode. I still consider it research. But being a child of the 1980's I couldn't help but notice two of my favorite things rolled into the below clip - the Thundercats and the nuances of global environmental governance (or any global governance for that matter). While Autobot leader Optimus Prime (of Transformers fame) practices and defends constitutional law ("freedom is the right of all sentient beings"), in this clip Panthro, Tygra and Cheetara provide some valuable insights into international law and the difficulties of enforcing it.
It is amazing how even across the vast distances of space and time policy-makers deal with the same problems of creating institutions to effectively manage a federation of numerous sovereign governments. The Thundercats effectively describe in 18 seconds the basic nature of international law, being largely unenforceable in the absence of military (or Thundercat) intervention or state acquiescence to the dictates of international arrangements. I believe (and hope) the Thundercats will be involved in the next round of climate talks.
On another note, where in the world have all the good cartoons gone? As for me and my children, we will watch the Thundercats.
- Blake Hudson
May 19, 2011
Yucca Mountain: Episode II - Attack of the Clones?
This week, news outlets are reporting that Nuclear Regulatory Commission Chairman Gregory B. Jaczko has been out-voted by other commission members. The issue du jour is whether to release an unredacted preliminary safety report to Congress -- formally, draft "Volume III of the Safety Evaluation Report ('SER')" for the Department of Energy's now-withdrawn Yucca Mountain license application.
According to an April 28, 2011 letter released this week by Congressman Ralph M. Hall (R-Tx.), a majority of commissioners disagreed with Jaczko and sent an unredacted version of the technical report to Congress. "I have reiterated my belief that public release of preliminary staff findings and conclusions establishes a dangerous agency precedent," Jaczko wrote in the letter. "Notwithstanding my reservations, a majority of the Commission is willing to provide unredacted copies in response to Congressional Committee requests provided that they are held in confidence."
At multiple turns, Chairman Jaczko's letter emphasizes the tentative nature of the Commission staff's evaluation:
- "[T]he findings and conclusions in the document are preliminary."
- "The staff's preliminary findings may turn out to be incorrect or incomplete. As such, they can mislead or confuse the public."
- "The redacted portions represent the predecisional findings and conclusions we normally protect from public release consistent with the Freedom of Information Act. Even my colleagues and I have not had access to the redacted portions of SER Volume III. As the appellate body for the agency, the Commission does not have access to predecisional, non-public information regarding the staff's substantive review of the Yucca Mountain application."
Perhaps more than anything, the Commission's release of this report exposes the increased politicization of energy policy in the nation's capital this year. Yucca mountain long has been a political battleground. Now, despite the Obama administration's express support for the nuclear industry, the current Congress is using the president's decision to shutter Yucca as political ammunition.
Add to this the ongoing debate over tax credits utilized by the oil industry, the increasing spotlight on natural gas fracking, and continuing malaise in D.C. on climate change policy, and the political nature of energy policy in the United States is laid bare. It resurrects the persistent question of American energy law and policy: Will we let markets decide our fate, or will we affirmatively choose the energy path we desire?
Once again, the answer seems to be "neither." Like the few Jedi scattered in an army of so many Republic clones, the real debate gets lost in the politics.
May 18, 2011
Feeling Lonely in a Climate Change Crowd
Over the past several years almost all of the Republican candidates vying for their party's nomination to run for President have tried to walk back past positions taken on climate change. Governor Tim Pawlenty, for example, was a supporter of addressing climate change when he was governor of Minnesota, but when addressing CPAC earlier this year, he not only backed off, he said of his prior position, "it was a mistake, it was stupid, it was wrong." Last week, Ann Carlson wrote an informative post for Legal Planet documenting the many flip flops on this issue.
However, a few of the candidates have stayed true to their past positions on climate change. Of these only Ambassador/Governor Jon Huntsman has stuck to his guns with a former position that acknowledged that climate change is a real problem that is worth addressing. In an interview Time published earlier this week, he said,
This is an issue that ought to be answered by the scientific community; I’m not a meteorologist. All I know is 90 percent of the scientists say climate change is occurring. If 90 percent of the oncological community said something was causing cancer we’d listen to them. I respect science and the professionals behind the science so I tend to think it’s better left to the science community—though we can debate what that means for the energy and transportation sectors.
Given the political realities of the Republican nominating convention, this is a courageous position for a candidate to take. Despite the fact that he stands with the National Academies of Science, the InterAcademy Council, the International Council of Academies of Engineering and Technological Sciences, the National Research Council, the American Association for the Advancement of Science, the American Meteorological Society, and even the Bush Administration’s Environmental Protection Agency, it is still awkward company to also stand alongside President Obama and the Sierra Club.
Obviously, both Democrats and Republicans have their blind spots and almost every politician flip flops on an issue at some time or another. (President Obama, for example, is currently struggling with explaining how he could have voted against raising the debt limit when he was a Senator but why it is vital for Congress to raise the debt ceiling now.) To me, it is a distressing commentary of our time that so many politicians are willing to walk away from their better judgment when it serves their political interests. Particularly when it comes to issues as massive as climate change, it seems that we would be best served by politicians willing to tell us what we need to hear instead of what we just want to hear.
-- Brigham Daniels
May 17, 2011
Too Big for (Environmental) Law to Deal With, Part 3: Global Inequity
This is the third in a series (see the first and second) exploring issues that I perceive as central to the study and practice of environmental law, but in some ways out of its reach or “too big.” This week I’d like to tackle the very big issue of global inequity. In any discussion of international climate law, global inequity is front and center. It’s not hard to talk about at a superficial level. It’s obvious and uncontested. But as soon as you start thinking about how international law should respond to global inequity, the difficulties begin.
In my climate change law class, we discussed how to construct a post-Kyoto climate regime. I asked my students to imagine that all the countries of the world had agreed to a worldwide cap and trade system to reduce greenhouse gas (GHG) emissions 50% from 2010 emissions by 2050. So, assuming 2010 worldwide emissions are 30 billion metric tons, the 2050 worldwide cap would be set at 15 billion metric tons. The only question left, I told them, was how to apportion the right to emit. In other words, how many allowances should each country get?
From a standpoint of global equity, an appealing apportionment principle is an equal per capita allocation of the right to emit. In other words, each country’s cap would be based on its population. Allowances would be tradable, so rich countries could continue to emit at higher per capita levels but they would have to pay poor countries to do so. Given the strong correlation between GHG emissions and human development, this principle seems to appropriately incorporate the notions of equal opportunity and human rights.
Interestingly, there wasn’t a student in the class willing to defend the proposition that a global cap and trade system should allocate allowances on a per capita basis. The numbers, I think, made it very hard for them to imagine. Assuming a projected population of 9 billion people in 2050, per capita emissions in 2050 would have to be about 1.6 metric tons. For the sake of comparison, that’s about a tenth of the current per capita GHG emissions in the US, and roughly equal to the current per capita GHG emissions in India.
Whither global equity?
- Lesley McAllister
May 16, 2011
Conservation Triage - "Should Conservationists Allow Some Species to Die Out?"
A recent article highlights the controversial concept of "conservation triage," whereby limited conservation resources are directed toward the species with the "best prospects for long-term survival." While the list of endangered and threatened species is growing, the funding for such programs is increasingly tight, and always finite.
The article highlights the plight of the California condor, the population of which dropped to 22 individuals in 1987. Twenty five years later the condor numbers only 192 living in the wild, while 189 live in captivity. The program to monitor and maintain condor populations costs more than $4 million a year, while the typical minimum viable population size for long-term species survival is about 5,000 individuals. At least one group of conservationists have asserted that "it is time for the global rescue operation to adopt the mind-set of a battlefield medic: Some endangered species are far more likely to recover than others, so we should identify those and save as many as we can." These conservationists argue that "you could save hundreds of butterfly species with the same investment being put into the condor."
Others, on the other hand, argue that "focusing on the cheapest wins 'may increase the short term tally of species, but we would end up saving only the most convenient ones.'" These conservationists point to the white rhino, the population of which dropped to 20 individuals at one point, but that stands at over 17,000 today.
This controversy demonstrates yet another tough choice faced by those concerned about the environment. It also highlights how approaches to habitat conservation can provide economic efficiency gains that can save both the most species and provide better long-term survival opportunities for those, like the condor, that are in limited numbers in the wild.
Land development activities are appropriating increasing and copious amounts of habitat/natural capital every day. It would seem a shift in focus from the costly propping up of single species in quickly developing areas to the prevention of habitat destruction is in order. The internalization of these environmental harms into our economic development costs may seem like triage to development interests and consumers, as they forgo - in the short term - a slight decrease in profit (or developers pass that cost down to the consumer). But in the long run it will be a far less costly triage than that proposed by some conservationists.
- Blake Hudson
More thoughts on natural gas and fracturing
As a follow-up to Blake's kind post regarding my brief sound bite, I'd like to offer a few thoughts that weren't reflected in the extremely short NPR statement. Natural gas has "exploded" in the United States, both figuratively and, in some cases, literally. In 2009, permits issued for natural gas drilling in the Marcellus Shale increased by about three-hundred percent. For specific permitting numbers visit the Pennsylvania Department of Environmental Protection's website, and click on the "Marcellus permits issued" maps. The Barnett Shale in Texas has seen a similar explosion in drilling permits. In 2010 alone, Texas's Railroad Commission issued 2,157 permits for natural gas drilling in the Barnett Shale. And these are not the only areas that are experiencing--or soon may experience--an explosion in natural gas development.
Most gas wells that are drilled (up to ninety percent of the wells, in fact), are now hydraulically fractured. Fracturing methods differ depending on where the drilling occurs, but in shales, hydraulic fracturing often requires "slickwater" fracturing, which uses millions of gallons of water and about 0.5 percent chemicals by weight. (See "sample fracture fluid composition by weight" in the previous link.) Some of these chemicals, such as benzene and toluene, are toxic; others are benign. For a slickwater fracture (a "frac" or "frack," as it is sometimes called), a company drills a well--often both a vertical and horizontal one--and then cases (lines) it. It perforates the well, injects an acid such as hydrochloric acid into the well to clean the formation surrounding the well, and injects several million gallons of water mixed with some chemicals into the well to induce or expand fractures in the formation around the well. It also injects proppant, such as sand, to prop open the fractures once they are formed, allowing gas to flow into and up the well. For a good summary of the process, see the New York Department of Environmental Conservation's Supplemental Generic Environmental Impact Statement starting at page 5-93.
The explosion in permits, drilling, and fracturing has been accompanied by explosions of gas wells, an intrastate gas pipeline, and water wells or homes near gas drilling and fracturing sites in Pennsylvania and Arkansas, among other states. Fracturing itself has not, in many cases, caused these incidents; they often are associated with the drilling and gas production activity that accompanies fracturing. The recent blowout in Pennsylvania, however, which spewed chemicals into a creek, occurred during a hydraulic fracturing operation. The growth of gas drilling and fracturing permits issued also has generated a number of potential environmental concerns, including, for example, the following:
1) Are chemicals that are transferred into water prior to fracturing stored and transferred in a safe manner? Some surface spills have highlighted the importance of this question.
2) What happens to the injected water and chemicals that do not come out of the formation after being injected?
2) How is the water/chemical solution that flows back up out of the well as "flowback water" after fracturing, along with the naturally produced water from drilling, stored on site and disposed of? Often, the flowback water--as described further below--is stored in a pit or tank at the well site and then either disposed of in an underground injection control well or through a wastewater treatment plant. Companies are improving flowback water recycling technologies, too.
3) Are onsite storage pits for flowback water properly constructed to ensure that chemicals do not seep into the soil and/or water? (Subtitle C (the hazardous waste disposal portion) of the Resource Conservation and Recovery Act does not apply to many oil and gas exploration and production wastes, as described in one of my previous posts. This might explain why many states allow gas companies to store flowback water, which sometimes contains toxic chemicals, in a pit on the surface while awaiting disposal. Some companies are moving toward storage in steel tanks on the surface. New York has proposed to require steel tanks.
4) When the flowback and produced water is disposed of in underground injection control (UIC) wells--as it often is in Oklahoma and Texas and other areas--are these wells properly constructed, as required by the Safe Drinking Water Act and the SDWA permits that accompany UIC wells?
5) When the flowback water is disposed of through wastewater treatment plants, are the plants able to handle the large quantities of wastes, the new chemicals, and the small quantities of natural radiation that the water sometimes picks up while sitting underground?
6) Is methane from fractured formations seeping into groundwater? A recent study in the Proceedings of the National Academy of Sciences begins to investigate this question. Have chemicals injected into perforated wells ever contaminated groundwater, and what is the risk of such contamination, if any? The Natural Resources Defense Council maintains a "list of incidents where drinking water has been contaminated and hydraulic fracturing is a suspected cause." The Interstate Oil & Gas Compact Commission--formerly headed by Governor Sarah Palin and now led by Governor Mary Fallin of Oklahoma--observes that "IOGCC member states have all stated that there have been no cases where hydraulic fracturing has been verified to have contaminated drinking water." Chesapeake Energy--a major gas extraction company--also states, "Based on reviews of state oil and gas agencies, there has not been a documented case of drinking water aquifer contamination related to the fracking of a deep shale natural gas or oil well."
7) A host of other questions relate to the drilling--not the fracturing--process, such as whether drilled wells are being properly cased to protect groundwater; whether companies are following proper stormwater control measures when constructing access roads and well pads; whether the naturally occurring radioactive materials (NORM) wastes that can come up out of a drilled well in the form of drill cuttings and other substances are being properly disposed of (land application often is allowed for certain types of drill cuttings); and whether substances such as used drilling muds are being properly disposed of.
Finally, authors of a recent draft Cornell study, also discussed on NPR, believe that natural gas may release more greenhouse gas emissions than assumed--so much so that considered over a certain time frame, the emissions could begin to rival emissions from coal.
My two cents? Natural gas seems important because it is abundant within U.S. borders and seems to release fewer greenhouse gases (on a CO2-equivalent basis) than do other fossil fuels, although the recent Cornell study suggests that scientists need to look at this more closely. But we should proceed cautiously and safely with natural gas extraction--just as we should with any other form of fuel extraction or energy production. We must carefully examine the risks of natural gas extraction and its alternatives. The EPA is beginning to do this with its "lifecycle" study of the effects of fracturing on water. Finally, we shouldn't forget that natural gas is, in the end, a bridge to something else--hopefully to an energy mix that will largely rely upon sustainable forms of energy such as renewables. A one-hundred year supply of natural gas looks like an "abundant" fuel source now, but from the perspective of future generations, it is a finite source. While relying on bridge fuels, we must start building the opposite shore to which the bridge will run. A bridge without a stable end point is a flimsy bridge, at best.
Hannah Wiseman in the news weighing in on "fracking"
My colleague and co-blogger Hannah Wiseman weighed in today on "fracking" and its provision of a cleaner alternative to other dirtier burning fossil fuels. You can hear her comments here. The story highlights how this area of energy law is likely to be a growing field for lawyers due to the many complexities of the process and its resulting controversies.
- Blake Hudson
May 15, 2011
In Case You Missed It - The Week of May 8-14
* This week WildEarth Guardians and the federal government settled WildEarth Guardian's pending Endangered Species Act listing litigation, which was substantial given in that two of its recent petitions included documentation and request for the listing agencies to list a combined total of more than 1,100 species. By the terms of the settlement agreement, the Obama Administration agreed to address 251 candidate species and petitioned species and WildEarth Guardians agreed not to bring additional lawsuits in the interium. Additional details of the settlement can be found on the ESA Blawg, the New York Times, and BusinessWeek.
* Ann Carlson wrote an informative post on Legal Planet detailing how many of the Republican candidates running for President have altered their positions on climate change.
* The Sierra Club called on Governor Brown to change California's implementation of its climate change law, AB 32. The LA Times' coverage on this issue was particularly good.
* There is a conflict brewing between the EPA and Illinois regarding the polluted state of the Chicago River (the same issue and river at issue in the frequently taught case of Missouri v. Illinois). Tip of the Hat to Jason Czarnezki's blog for directing us to the Milwaukee Journal Sentinel's coverage of this.
* The Hill reports that House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) may use the upcoming debt-ceiling legislation to try to thwart EPA's regulation of greenhouse gases. This follows on the news of Senate Republicans introducing legislation to abolish the Environmental Protection Agency.
* The following headline by the LA Times may be some of the best environmental news of the week: $25,000, 350-mile-per-charge electric car could be reality by 2017, DOE says.