July 1, 2011
New Labels For a New Ethanol Fuel
This week, the EPA finalized labeling regulations for "E15" fuels--gasoline-ethanol blends that have "more than 10 and up to 15 percent ethanol." The regulations attempt to ensure that drivers of light-duty vehicles with model years older than 2001 will not fill up their gas tanks with E15.
Why all of the attention to E15, and why the special label? Growth Energy and other ethanol supporters applied for a Clean Air Act waiver in 2009, which the EPA initially denied but later granted in two partial waivers. These waivers are from the Clean Air Act's Section 211 prohibition against introducing new fuels that are not substantially similar to fuels or fuel additives used in certifying vehicles or engines of model year 1975 or higher. The first partial waiver only allowed for E15 use in light-duty motor vehicles with model years of 2007 and higher, and the second expanded the time frame to model year 2001 and higher. In granting the second partial waiver, the EPA concluded that light-duty vehicles of model year 2001 and higher are able to "maintain emission control performance when operated on E15." The EPA noted, however, the necessity of preventing misfueling of the vehicles for which E15 is not approved; this is the requirement that led to this week's release of the labeling rules.
Several of the organizations with stakes in the labeling requirements don't seem to be fans of the final label. The American Coalition for Ethanol believes that previous proposed versions were too "inflammatory" and that the current one is an "improvement," but it objects to the language about the fuel potentially causing damage to older vehicles and to the label's "hazard-orange" color. The Global Automakers group seems even more dissatisfied with the regulations, concluding that they "will not effectively prevent both intentional and unintentional misfueling."
June 30, 2011
Getting to Commercial-Scale Carbon Capture and Sequestration
Legal scholarship of late has highlighted the need not just for climate mitigation but also for climate adaptation. One energy option that falls somewhere in between these two ends of the spectrum is carbon capture and sequestration ("CCS"): removing carbon dioxide streams from commercial operations, especially coal-fired power plant emissions, and then transporting it to geologic formations where it can be stored long-term underground.
Despite the fact that the oil and gas industry has used this process for years in enhanced oil reocvery operations, commercial-scale CCS has yet to get off the ground as a climate change solution. Numerous recent scholarly articles have addressed legal concerns related to carbon capture and sequestration, including, to name just a few, excellent pieces by Victor Flatt and by Alex Klass and Elizabeth Wilson.
While many studies have suggested barriers to using CCS on a broad-scale basis -- including its high cost compared to traditional coal combustion, possible legal liability for underground storage gone awry, and difficulties in building the massive pipeline infrastructure that would be needed for commercial CCS -- no study to date has methodically addressed which of these barriers is greatest. The answer to that question is important, because it implicates what CCS regulation should look like.
One study that I have been working on with colleagues from the University of Utah's Institute for Clean and Secure Energy takes up this question (and several others). While we are still in the process of finalizing the report, here is a partial preview.
The study includes a survey of about 230 industry, professional, regulatory, and academic representatives involved in CCS. One of the survey questions asked the participants to rate, on a 1 to 5 scale, a number of possible barriers to CCS commercialization. A score of 1 means that the barrier is "no obstacle" to CCS commercialization, a 2 is a "minor" barrier, a 3 is a "measurable" barrier, 4 a "significant" barrier, and 5 a "critical barrier.
Four obstacles to CCS commercialization ranked highest in the survey: cost, lack of a carbon price or other financial incentive for using CCS, liability, and lack of comprehensive CCS regulation.
In one respect, this ranking is unsurprising. Cost, liability, and the lack of climate change legislation have been widely acknowledged as problematic for the roll-out of CCS, so one might expect them to top the list. Perhaps more interesting, however, is how highly the lack of CCS regulation rates. What this means is that before CCS is likely to get off the ground, a predictable, comprehensive regulatory regime will need to be put in place.
The survey has more to say on that front. Look for the full report later this summer.
Georgia's (temporary?) reprieve
Tuesday brought big news in the East's biggest water war, with the Eleventh Circuit Court of Appeals handing what looks like a major victory to Georgia and what clearly is a big loss to Alabama and Florida.
For decades, Georgia, Alabama, and Florida have been battling over the Apalachicola-Chattahoochee-Flint River system (the ACF, for short). The conflict is complicated, but in a nutshell, Atlanta relies on Lake Lanier, a reservoir on the upper Chattahoochee, as a major water supply; Alabama wants enough water to support barge traffic and provide power; and Florida wants adequate environmental flows to sustain the rich ecosystem of the Apalachicola River estuary and Apalichocala Bay. When drought strikes, as it recently did, those uses come into sharp conflict. The states have been trying for years to negotiate a settlement, but without success, and more recently have been playing what J.B. Ruhl aptly described as "three dimensional chess in the federal courts."
Until this week, the chess game hadn't been going well for Georgia. It, and the Army Corps of Engineers, which operates the dam that impounds Lake Lanier, had successfully fended off Florida's claims under the Endangered Species Act (yes, Florida was an ESA plaintiff). But in two recent decisions, first the D.C. Circuit (Southeastern Federal Power Customers, Inc. v. Geren, 514 F.3d 1316 (2008)) and then the U.S. District Court for the Middle District of Florida (In re Tri-State Water Rights Litigation, 639 F.Supp.2d 1308 (2009)) dealt crushing blows to Georgia's position. They held that Lake Lanier was built for flood control, navigation, and hydropower purposes, but not as a municipal water supply, and that the Army Corps of Engineers could not sustain Atlanta's current water supplies, let alone increase them, without additional Congressional authorization. For Georgia, this was a potential disaster, "the most important case for Georgia's future in decades," according to the state's attorney general (as quoted in the Atlanta Journal-Constitution). For Alabama and Florida, it was a trump card.
Tuesday's decision changed the game. The Eleventh Circuit held that that the Rivers and Harbors Act, which contains passages specifically authorizing the impoundment of Lake Lanier, did contemplate the use of the reservoir as a water supply. It also held that Congress anticipated some increase in municipal allocations as Atlanta grew, and that some increase in Atlanta's water supply could happen without a new Congressional approval. The court did not say how much change would be allowable; that, it held, was a question for the Corps to resolve on remand. It also did not remove all of Georgia's potential legal worries, for Florida and Alabama are promising to seek en banc review, and the endangered species in the Apalichola Estuary may still trigger additional limits Atlanta's water use. But Georgia still stands in a much stronger position today than it did a week ago.
Or so it seems. Until recently, Georgia seemed to be going through the growing pains of a major water user who gradually realizes the existence of environmental limits. This doesn't seem to be an easy process, as the struggles of Los Angeles, Las Vegas, San Antonio, and a great many other water-challenged metropolitan areas illustrate. In fact, a transition out of the stage of water-oblivious development sometimes seems to require staring down the twin barrels of a drought and a judicial injunction. But it is an important transition. Once big water users come to grips with the realities of environmental limits, they can do remarkably creative things. From water-efficient building codes to block pricing to water recycling and xeriscaping incentives, we now have a broad menu of options for saving water, and, often, energy and money along the way, without sacrificing the qualities that make a city a desirable place to live.
Prior to the recent drought and litigation, Georgia showed little interest in such options, and was widely perceived as the arrogant bully in the ACF fight. That was unfortunate for all parties involved, not just Alabama and Florida, for Georgia backed itself into a corner by squandering many opportinities for water-smart development. What happens now is anyone's guess. If Georgia builds on its initial efforts at water reform, it and its neighbors will likely be better off in the long run. But water reform tends to be a slow process requiring a sustained commitment, and with a primary incentive gone, Georgia may well go back to its old ways.
- Dave Owen
June 29, 2011
Overcoming Partisanship Through Dialogue?
In the lead-up to the 2012 U.S. presidential election, the divisions in this country are in the news. An article this morning in the Washington Post noted that the appointees to the Supreme Court by President George W. Bush vote very similarly to one another, as do President Obama’s appointees. An interesting opinion piece in yesterday's Tuscon Citizen reflected upon how Representatives Gabriel Giffords and Michele Bachman (mentioned in Brigham’s post earlier today for her calls to abolish the EPA) have, together with former-Governor Sarah Palin, changed the political landscape for women-- without mention of their widely divergent views on environmental and energy issues.
All this takes place as June comes to a close, which will bring with it a new monthly mean from the Mauna Lau observatory of carbon dioxide atmospheric concentrations. The concentrations have been steadily rising—May 2011 was 394.16 parts per million, well above the 350 parts per million that leading climate change scientists say we should stay below to minimize risks.
This combination makes me reflect upon one a conversation I had with a climate skeptic shortly before moving from rural Virginia last year. He started the nearly hour-long conversation in a somewhat combative posture, until I started talking about the nuances of climate science. I explained that there’s a lot of certainty about the big picture, but greater uncertainties (both because of less research and because prediction is harder) about the here and now. Once I did that, he became open to talking about the question I think is most crucial—regardless of one’s perspective on climate change science, what should we do in response to the risks?
I continue to believe that the vast majority of people in this country are not so divided in response to that question if we can get to it and that “clean energy” paired with “green jobs” is probably the most politically viable way of getting there right now. However, the “can we get to it” problem becomes ever harder in the current partisan environment. Recent polling data suggests the U.S. public has become less certain about climate change even as scientific consensus solidifies. And Doug Kysar wrote an interesting reflection on the way in which climate change science was portrayed in the AEP v. Connecticut opinion.
How do we encourage thoughtful dialogue about science and complex environmental problems? How do we ensure that lawyers and policymakers have enough exposure to science that they feel comfortable having nuanced conversations about it? We need to somehow address these issues even as the latest presidential election cycle heats up.
Disturbing Report From the Coal Industry: Wind Farms May Blow the Earth Off It's Orbit (as reported on ONN)...
....and it's not just wind. The clip also highlights the dangers of solar energy:
SATIRE DISCLAIMER: This is satire
- Blake Hudson
Why I Worry About Michele Bachmann's Call to Abolish EPA
In some senses, it is tempting to write off Michele Bachmann's presidential campaign. After all, despite the controversy it caused, many watching on the sidelines would agree with the gist of Chris Wallace’s recent question to Michele Bachmann, “Are you a flake?” Furthermore, regardless of what one thinks of her, it is hard to deny that her chances of becoming the next president seem quite low. (If you disagree with this assessment, you can currently get roughly 8 to 1 odds with the political futures market Intrade.com on the prospect of her becoming president in 2012.)
Because of this, it may also be easy to brush aside the fact that as a presidential candidate, she has repeatedly called for the abolition of EPA. In a June 13 debate in New Hampshire, for example, Bachmann called for “mother of all repeal bills” that would target “job-killing regulations.” She went on to clarify, “And I would begin with the EPA, because there is no other agency like the EPA. It should really be renamed the job-killing organization of America.” This past week, she returned to that theme in an interview with the Associated Press.
Even though it may be tempting to do so, I believe ignoring her calls to abolish the agency is a mistake. While I do not believe she will be our next president, I think her voice is important in the ongoing debate surrounding EPA. Does that mean I think EPA's days are numbered? Absolutely not. However, I do believe that the rhetoric coming out of her campaign is particularly important for candidates courting the support of the Tea Party and is likely to be mimicked by them. Her calls to end EPA are likely to echo in one way or another through the halls of Congress and in nominating conventions all over the country. I worry that the power of her words will become manifest in increased efforts to slash EPA's budget, cut away its authority, and water down its policies.
So, regardless of whether you think Michele Bachmann's campaign will falter, I believe it is a mistake not take the potential impact of her words seriously--even if she slips up and confuses the serial killer John Wayne Gacy with John Wayne the movie star.
-- Brigham Daniels
June 28, 2011
Have you ever thought of electronic appliances in your home as vampires? It's true: they suck electricity in a secretive and disturbing way. We probably think about turning off the lights when we go to sleep or leave the house, but we need to think about turning off all our electronics. And there’s the rub: they often aren’t designed to turn off.
Standby power is part of the problem. Standby power is the electricity your appliances use when they are in standby mode. Standby mode enables our gadgets to turn on quickly, and it supplies a plentitude of digital clocks in our homes. A typical American home has forty products that constantly draw power, amounting to almost 10% of residential electricity use (see Lawrence Berkeley Lab's website on standby power for this and other fun facts).
Energy wonks have been discussing standby power since the 1990s (referred to early on as “leaking electricity.”) Since then, they have also been recommending that policymakers limit standby power consumption to one watt per device. Bush’s Executive Order 13221 (the “1-Watt Standby Order”) responded to some degree by requiring that federal agencies purchase products with low standby energy consumption. Mandatory efficiency standards that apply to manufacturers, however, have not been forthcoming.
As featured in a recent article in the New York Times, the real Dracula these days are the set-top boxes that provide cable and digital recording services. According to the recently released NRDC study described therein, they consume an incredible $3 billion in electricity annually in the United States, two-thirds of which is wasted when no one is watching and shows are not being recorded. Basically, these devices don’t even have a standby mode. They are electron-thirsty 24/7.
So what's a concerned citizen to do? Here's a slogan I just thought of that seems to capture our primary alternatives: unplug, educate and advocate. And if that one doesn't do much for you, here are a few others:
Save energy for a brighter future;
Don’t be fuelish;
If it’s not in use, turn off the juice;
Today’s wastage is tomorrow’s shortage;
and, Conservation is power.
- Lesley McAllister
Introducing New Blog Editor, Professor Dave Owen
We are thrilled to announce that Professor Dave Owen has joined us as co-editor of Environmental Law Professors Blog! Dave will be a fantastic addition to our line-up, and we look forward to his weekly contributions. If you do not already know Dave, here is a brief introduction:
Dave teaches courses in environmental law, natural resources law, water law, coastal zone law, and administrative law. His scholarly interests range from the study of ecosystem restoration to climate change, and he is particularly interested in legal responses to environmental uncertainty and change. He's also a water law geek, and many of his posts are likely to relate to water resource management. Some of his recent research has involved the Endangered Species Act's critical habitat protections and, before that, the impacts of urbanization upon water quality, which is a nice way of saying that he's spent a lot of time pondering the law and ecology of shopping malls. He lives a few blocks from the ocean in Maine, where he spends most of his time chasing his 15-month old son in circles and reading Angelina Ballerina over and over and over again to his three-year-old daughter.
We expect Dave's first post will be later this week.
June 27, 2011
Environmental Freakonomics: Bottling Water Not So Bad After All?
As I got deeper and deeper into my Natural Resources Law and Policy material on water, I lamented to a friend that "we just don't have enough water." My friend, an economist, said "no, we just don't have enough properly priced water." My concern was driven by a Scientific American article about the Ogallala Aquifer, which supports the breadbasket of the world and stretches all the way from South Dakota to Texas. In West Texas alone, the number of irrigation wells grew from 1,166 in 1937 to more than
66,000 in 1971. The overdraft of the aquifer in 1975 was equivalent to the entire flow of the Colorado River, but today the aquifer is being depleted at an annual volume equivalent to 18 Colorado Rivers. In some places agriculture is withdrawing four to six feet a year, and nature is putting back half an inch. Natural aquifer recharge would would take 6,000 years if it were to be fully drained.
In a fascinating guest post on freakonomics.com, Charles Fishman describes some of the drivers of water overconsumption within the context of a very interesting case study. Fishman highlights a move by the National Basketball Association's Cleveland Cavaliers to remove all of the 18 water fountains in Quicken Loans Arena (the "Q"). As an alternative to the water fountains - which, of course, provided free water - the organization directed people to free cups of water available in the concession stands, or patrons could purchase a $4 bottle of Aquafina. Of course, to receive either of those options, people had to be willing to stand in line - which can be a lengthy proposition at a sporting event. Three months passed, and over 1 million spectators attended events in the Q with not one complaint. About halfway through the NBA season, however, a newspaper reported the removal of the water fountains. The fans were furious, even though the Q had sold out 29 home games prior to fans' awareness of the removal. The Q scrambled to put the water fountains back in.
This story demonstrates, first, the entitlement people feel toward things that they obviously do not need - which is a disturbing commentary on the societal drivers of overconsumption and environmental degradation as a general matter. But second, the story raises some very interesting facts about water and why we should consider paying more for it. Fishman notes that if you buy a 17 ounce bottle of water for $0.99, you could take it home and continuously refill it every day with tap water for 6 years before you spent $0.99 on that amount of tap water! Even cheap bottled water is 2,000 times more expensive than tap water at home. This demonstrates an amazing disparity between what we are willing to pay for water when we are at sporting events, on road trips, going to the beach, etc., and what we are not willing to pay, and indeed feel entitled to, in our homes - the place where most water overconsumption occurs. Fishman notes that "[R]esidents act as if increasing the water bill from $23 a month to $30 a month will force them to choose between their heart medicine and their water," even though the average household water bill in the U.S. is less than half the average cable TV or cell phone bill.
Though there are obviously big problems with bottled water - not to mention the toxic chemical and waste disposal issues posed by the plastic used to manufacture them - when considering overconsumption of water it may be useful not to rely too heavily on conventional wisdom ("convenient wisdom") regarding the parcelization of water resources. As Fishman notes, "'Free' is the wrong price for water. In fact, the lack of a price for routine water service is the most important thing that’s wrong with water — resources that are free are wasted; there’s no incentive to learn to use them smartly; there’s no money to maintain and modernize the existing water system; there’s no incentive to reach back and protect the source of something that’s free."
- Blake Hudson