June 3, 2011
Regional Governance and NEPA: Is an Interstate Commission a Federal Agency?
As I mentioned in an earlier post, New York Attorney General Schneiderman announced on May 31 that he would sue the federal government for failure to conduct "full environmental review" of the Delaware River Basin Commission's proposed regulations for hydraulic fracturing ("fracking" or "fracing") under the National Environmental Policy Act. It appears that the suit has now been filed. The proposed regulations challenged in the suit would allow the DRBC to approve certain aspects of proposed well pad construction and water withdrawals for natural gas drilling and fracking in the Delaware River Basin for ten-year periods and wastewater disposal for five-year periods. Although the DRBC's approval of these activities would not constitute full approval of well drilling and fracking (state agencies still must grant a permit to drill and have other regulatory authority over the wells), the Commission's partial control of natural gas development in the Basin has been and will continue to be important under the new regulations. The DRBC has proposed to require, for example, that well pads in the Basin be set back certain minimum distances from wetlands, water supply wells, and surface water intakes; that fracturing operators dispose of wastewater at in-basin wastewater facilities that "the Commission has approved . . . to accept non-domestic wastewater" or out-of-basin facilities for which the Commission has approved wastewater export and which have "obtained applicable state permits and approvals"; that water withdrawals for fracking not cause stream flow to dip below low-flow conditions at locations below water withdrawal points; and that permit applicants complete an Invasive Species Control Plan "if determined by the Commission to be necessary," among many other requirements. In other words, the proposed regulations seem to regulate important potential environmental impacts of natural gas development in the Basin.
Some of the interesting questions likely to arise in this case include whether prior and ongoing environmental studies conducted in the area adequately cover the current regulations and whether a regional interstate compact commission like the DRBC--which was approved by Congress and consists of four state governors' representatives and a federal Army Corps representative--must follow NEPA requirements. The latter question of whether regional agencies are federal in nature or involve sufficient federal involvement to trigger NEPA requirements can perhaps easily be answered with a "yes" (more on that below), but it still provides a useful review of NEPA definitions for students. And, more interestingly, according to the New York Times, the federal representative to the DRBC--Brig. Gen. Peter A. DeLuca of the Corps--has argued that the DRBC is not a federal agency. I know of at least one other regional commission that has made this argument in a NEPA case, but the court didn't end up addressing it. See National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883 (D.C. Cir. 1981).
As you know, "NEPA requires a federal agency to prepare an environmental impact statement (EIS) as part of any “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (quoting 42 U.S.C. 4332 (2)(C)). As you also know, the Council on Environmental Quality's "regulations implementing NEPA define 'major federal action' to include 'actions with effects that may be major and which are potentially subject to federal control and responsibility.'" Piedmont Environmental Council v. FERC, 558 F.3d 304, 316 (4th Cir. 2009) (quoting 40 C.F.R. 1508.18). The Council on Environmental Quality's regulations also provide, "Federal actions tend to fall within one of the following categories: 1. Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.," and "4. Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities." 40 C.F.R. 1508.18. "'Federal agency' means all agencies of the Federal Government. It does not mean the Congress, the Judiciary, or the President, including the performance of staff functions for the President in his Executive Office." 40 C.F.R. 1508.12.
The DRBC provided a notice of proposed rulemaking for its fracking rules in the Federal Register, which seems to suggest that it is adopting official policy. It also seems that the DRBC, in approving water withdrawals, wastewater disposal, and well pad locations, also will be issuing permits for activities in a defined geographic area (the Delaware River Basin)--albeit a large area. But is the DRBC a federal agency, and/or is there sufficient federal involvement here? Very likely yes. The Commission has a federal representative from the Army Corps of Engineers, and it is partially federally funded. Further, "unlike most interstate compacts where Congress merely 'consents' to an interstate compact pursuant . . ., the federal government became a formal signatory member [of the Commission's Compact], subject to various express conditions and reservations," Delaware Water Emergency Group v. Hansler, 536 F.Supp. 26, 28 n. 4 (D.C. Pa. 1981), and "Article 2 of the [Delaware River Basin] Compact creates the Delaware River Basin Commission as 'an agency and instrumentality of the governments of the respective signatory parties.'" Hansler, 536 F.Supp. at 30 (emphasis added). Finally, prior DRBC actions have followed environmental assessments. See Hansler, 536 F. Supp. at 28.
While the "federal action" question seems to be a slam dunk (to me, if not to the DRBC's federal representative), other interesting NEPA issues might involve the proper scope of review in light of the thousands of permits that could be issued in the basin. Attorney General Schneiderman has requested review of the cumulative impacts, for example. Regardless of the issues that end up dominating the case, it will raise interesting and timely NEPA and regional governance examples for the classroom.
June 2, 2011
Electricity's Zombie App?
Picking up on Prof. McAllister's post Tuesday about top environmental law films, one recent movie should not be missed. Strikingly shot, beautifully conceived, Into Eternity traces the story of the construction of Onkalo, Finland's version of the United States' Yucca Mountain: a deep-beneath-the-earth, labyrinthine permanent repository for high-level nuclear waste.
The film is as much art as it is documentary, but at its core its mission is to ask the hardest questions there are about spent nuclear fuel: How is it that we continue to rely so heavily on nuclear power when no one has yet to find a politically palatable solution for the waste? How can humans conceive of, much less maintain, a structure that will last 100,000 years when nothing we have ever built has lasted even a fraction of that time? What are our obligations to future generations, whether from a theological or humanistic perspective, in terms of the planet that we all share? If power storage is likely to become electricity's "killer app," Into Eternity seems to be asking, is nuclear waste its "zombie app"? Is nuclear waste likely to come back years from now, undead-like, once gone but now resurrected, to haunt humankind and the planet on which we live?
The film is at its best when it asks these questions in its uniquely creative ways. Filmmaker Michael Madsen puts his own, indelible imprint on the long-debated issue of nuclear waste. Whether pointing out that "merely" 5,000 years later we hardly understand what the Egyptians were doing with their pyramids; asking if Edvard Munch's The Scream would be an effective, universal warning sign for Onkalo millennia or even centuries from now; showing the contrast between Onkalo's dark, underground tunnels and the gorgeous winter white forests they lie beneath, the film drives home both the difficulty of the task and the contrast between nature and the high-tech civilization we have erected.
Still, Into Eternity is rather one-sided. It zeroes in only on the problems of nuclear waste without highlighting the many benefits we garner from nuclear power. It emphasizes the temporal length of the waste's risk without discussing the likelihood. It, quite intentionally, elicits emotion, particularly fear, without exploring the social, economic, and political dimensions of the dilemma. True, the Scandinavian experts who are interviewed throughout the film are excellent, but they are used more as ornamentation to spotlight Onkalo's mind-boggling complexity than they are to explore it.
In the end, the choice of how to portray Onkalo is the artist's prerogative. Art, at its core, is all about perspective.
The vision of nuclear waste offered here may be a somewhat jaundiced one, but it is no less sobering -- or worthwhile -- for the wear.
June 1, 2011
How I Got Interested in Environmental Law
This week a neighbor asked me what got me interested in environmental law. After answering the question, it struck me that the things that initially drew me in have very little to do with my research or the content of my environmental law courses. Even though these things may not have been enough to sustain my interests, my hunch is that many people in the field and students in my classes could tell different versions of the same stories.
First, my family spent a lot of time in the mountains and canyons of the Wasatch Front when I was a kid. Those experiences taught me to care about these places and my memories of them gave me a personal connection to them.
Second, I had a number of experiences in the same mountains, in red rocks of southern Utah, and in several other places outside of my home state of Utah where I have found energy, peace, or renewal from just being there. I recently ran across the following line from Thoreau: "The earth I tread on is not a dead, inert mass. It is a body, has a spirit, is organic, and fluid to the influence of its spirit, and to whatever particle of that spirit is in me." In reading this, I thought back to those experiences and places. Given, Thoreau's appreciation of nature and opportunities he had for these sorts of experiences, it is not surprising to me that as he neared the end of his life and was asked whether he had made peace with God that he answered, "I did not know that we had ever quarrelled."
The last explanation for my interest in environmental policy and law grows out of a pretty simplistic reaction to people compromising the air, water, and land, particularly when these impacts are likely to be long-lived or where I am made to feel the impacts are excessive. In many ways, such a reaction comes from the gut and is an emotion response too--don't expect a cost-benefit analysis or a refined exercise of environmental ethics before I form an initial opinion. (I grant you, applying insights from my training, further reflection, and additional information often cause me to rethink this initial response.) Yet, this is where things begin for me. It is this reaction and the implied notion that we often do not get it right the first time, I suppose, that prompted me to go into environmental law rather than some other profession that deals with the environment.
-- Brigham Daniels
May 31, 2011
Top 5 Environmental Law Films
With the arrival of summer break, you have time to watch some movies, right? Below are my top 5 environmental law films. They make the cut both because they are very well-done and they have good content about the law and legal processes. The runners-up, in my view, are worth watching but lack a bit in one or the other category.
I call these environmental law films because they tie in well with the environmental law class I teach, which is focused on pollution (mostly CAA, CWA, TSCA, RCRA, and CERCLA). In future posts, I'll provide lists of my top 5 for other classes I teach, including Natural Resources Law, Climate Change Law, and Comparative Environmental Law. I have shown these films to students as a lunch series to complement my courses, and I also sometimes use short clips in class.
If you have one to recommend, please let me know. I'm hoping to watch some movies this summer too!
Environmental Law Films – Top 5
1) Who Killed the Electric Car (2006, 92 mins.): On California’s policies with respect to electric cars (Netflix)
2) Blue Vinyl (2004, 90 mins): on the use of toxic materials in building materials and other consumer products (Netflix)
3) Burning the Future: Coal in America (2007, 89 mins.): on coal mining and water pollution, especially in Appalachia (Netflix)
4) A Civil Action (1998, 115 mins): Based on toxic torts case of Anderson v. W.R. Grace (D. Mass, 1986); regarding whether the groundwater contamination caused by a leather production company was responsible for several deadly cases of leukemia. (Netflix)
5) Erin Brokovich (2000, 130 mins): based on a real toxic torts case regarding whether hazardous wastes deposited by Pacific Gas & Electric contaminated drinking water and were responsible for harms to human health in the southern California town of Hinkley. (Netflix)
Trashed: the Story of Garbage, American Style (2007, 76 mins): On landfills and solid wastes
The Recyclergy (2006, 33 mins): On community recycling in the San Francisco Bay area
New York Attorney General Schneiderman Announces Fracturing Suit
On May 31, 2011, New York Attorney General Eric Schneiderman announced that he will sue the federal government in federal district court today for "its failure to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful 'fracking' technique – in the Delaware River Basin." Schneiderman claims that the federal government is required to conduct a NEPA review of the Delaware River Basin Commission's proposed regulations for natural gas development. The Delaware River Basin Commission is a regional commission that was approved by the federal government in 1961. Its members include the governors of Delaware, New Jersey, New York, and Pennsylvania, and a Corps division engineer. Thanks to Joel Kupferman for alerting me to this.
May 30, 2011
When All Else Fails Bring Up the "Other" Carbon Problem
When confronted with friends or students who may be skeptical of the human role in climate change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO2 the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the beginning of the Industrial Revolution.
A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity.
Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms.
It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of CO2 and other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial.
For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:
- Blake Hudson
May 29, 2011
In Case You Missed It - The Week of May 22-28
* A Harvard study finds that traffic congestion in the USA's 83 largest urban areas last year led to more than 2,200 premature deaths and a related public health cost of at least $18 billion (USA Today).
* New Jersey's Gov. Chris Christie announced that the state will withdraw from the northeast Regional Greenhouse Gas Initiative, or RGGI, by year's end (NJ.com).
* Switzerland, in the wake of Fukushima Daiichi, has called for a permanent ban on nuclear power within its borders, including eventual decommissioning of its five existing nuclear power plants (NPR).
* Exxon and Chevron shareholders called for, but failed to adopt, a resolution seeking greater transparency about the processes and chemicals used by the companies for natural gas fracking (Wall Street Journal).
* NOAA declined to grant endangered or threatened status to the Atlantic bluefin tuna (NY Times).
* Google and Citigroup, Inc. each pledged to invest $55 million in the "Alta Wind Energy Center in southern California." The wind farm will be the largest in the country when completed (Wall Street Journal).
* On May 25, the Texas Senate passed a bill that would require hydraulic fracturing companies to disclose chemicals used in hydraulic fracturing. The bill differs from a somewhat similar bill passed earlier by the House.