Saturday, July 9, 2011
This past week, a Forest Service employee dressed as Smokey the Bear came to my town along with a very impressive hot air balloon that looked like Smokey’s head. As embarrassing as it is, I have to admit that I even had my picture taken with Smokey, and oddly I was a little excited about it. You would have thought that the plush-suited guy was a real celebrity and I was a devoted fan. Well, maybe he is, and maybe I am. Let's face it: in the world of charismatic Mega Mascots, Smokey is king or close to it.
Today, Smokey’s fame was only reinforced as I drove to Jackson, Wyoming. I went through a number of national forests, and in every one of them, welcoming at every entrance was a picture of Smokey along with some information about the day’s fire-hazard level. Looking at the Smokey picture and the fire-hazard level, I not only thought about Smokey's popularity but also his message, usually delivered with his booming, authoritative voice, “Remember, only you can prevent forest fires.”
Of course, on one level it is hard to do anything but praise Smokey for his many attempts to teach children not to play with matches. My personal experience suggests that not all children absolutely heed Smokey’s plea, but hey, at least he is trying, right?
Yet, the more I have learned about management of our federal lands, I am much more conflicted with the policy of fire suppression that is associated with him. While it is very easy to see why any homeowner living near a national forest would appreciate as much fire suppression as possible, in the longer term, the costs related to such an approach become clear. Fire suppression leads to denser forests, and denser forests increase the likelihood of fires going forward and the intensity that they will likely burn. Furthermore, a number of species of plants rely on fire to assist them spread and thrive.
But, despite the fact that I am conflicted regarding Smokey’s lifework, I still like him.
Yet, all this thinking about Smokey also made me think about another federal-created mascot, Woodsy. I have not seen Woodsy in a long time. As I racked my brain about Woodsy, the more Woodsy seemed like the friend that you lose track of and can't even find on Facebook. Whereas, Smokey is everywhere from my hometown to the woods where I can’t even get cell coverage, there is no trace of Woodsy. He is gone. Where is Woodsy?
Even more disturbing, as I have asked kids if they have seen Woodsy, they do not even know who he is. They know and love Smokey but have never heard of Woodsy. And worse, I have asked a few adults if they had seen Woodsy lately, and in my small sample, none of them even really remembered who Woodsy was—perhaps it was the leaded gasoline they inhaled during childhood. After dropping a few hints to these adults, they seemed to remember Woodsy. As the lights started to come back on, my favorite response was, “Oh yeah, didn’t he say, ‘Don’t start forest fires if you give a hoot.’”
For those of you, like me, who long for Woodsy and his anti-pollution message, here is a dose of Woodsy.
I am not sure if these PSAs really changed behavior. However, on the off chance that they do, if you give a hoot, show it to the kids in your life.
-- Brigham Daniels
Friday, July 8, 2011
This week has brought yet another round of conflict between the EPA and Texas. On July 6, the EPA finalized its Cross State Air Pollution Rule, which according to the EPA, "requires 27 states to significantly improve air quality by reducing power plant emissions that contribute to ozone and/or fine particle pollution in other states." Despite lobbying to exclude Texas from this rule, the EPA included Texas in cuts that the Dallas Morning News has characterized as "particularly steep":
By 2012, the state’s utilities must reduce annual sulfur dioxide emissions to 244,000 tons, a 47 percent cut from 2010 levels. Its nitrogen oxide levels must fall about 8 percent.
At issue is how utilities will comply with the emissions cap in the short term.
Utilities representatives claim that the cap was applied too hastily and does not give them enough time to comply, while the EPA and environmental groups claim that there are plenty of cost-effective alternatives. These rules, combined with others, put pressure on utilities to retire some of their coal fired power plants. Stay tuned for how this conflict evolves as it raises important questions about the technical and political feasibility of transitioning from dirty coal and about the dynamics between the EPA and states pushing against regulation.
Following the discovery of techniques to extract natural gas from the enormous Marcellus Shale that underlies New York, Pennsylvania, West Virginia, Ohio, and small portions of other states in the area, states overlying the shale have taken very different approaches to developing this resource, which contains large quantities of natural gas. (Geology professors in the region estimate that companies could recover 50 trillion cubic feet of gas from the shale.) In 2008, companies drilled just 195 Marcellus wells in Pennsylvania, and by 2010 the number had exploded to 1,386 Marcellus wells. New York, in contrast, has not yet allowed the temptation to "drill for dollars" to overcome its concerns about the environmental impacts of shale development. After several years of review, though, it appears that New York may soon be ready to jump into the gas bonanza.
In 1992, New York's Department of Environmental Conservation completed a Generic Environmental Impact Statement under its State Environmental Quality Review Act. This statement addressed the potential impacts of oil and gas well development in the state and concluded that issuing a standard permit to drill did not have a significant environmental impact, except in certain locations near parks, agriculture, and water. As applications for a new type of gas extraction in shales emerged, however--extraction that often would require both vertical and horizontal drilling and large quantities of water--the Department in 2008 determined that the 1992 GEIS did not adequately address this new drilling and "high-volume" hydraulic fracturing technique. So the DEC published a draft Supplemental Generic Environmental Impact Statement, which described the additional impacts of this technique and placed applications for horizontal drilling and high-volume fracturing on hold while reviewing these impacts. Several additional actions solidified delays of high-volume hydraulic fracturing in New York. New York's Assembly and Senate passed a temporary moratorium on new hydraulic fracturing for natural gas, which then-Governor Paterson did not sign. Governor Paterson did, however, place a moratorium on high-volume horizontal hydraulic fracturing, which lasted through at least July 1, 2011.
On July 1, the DEC issued an executive summary of its preliminary revised Draft Supplemental Generic Environmental Impact Statement (SGEIS) for high-volume hydraulic fracturing. Under this revised statement, high-volume hydraulic fracturing will not be permitted in New York's unfiltered water supply watersheds, "reforestation areas, wildlife management areas, state parks, and 'primary' aquifers," and certain other "setback and buffer areas." As the executive summary reminds readers, natural gas drilling also already was prohibited in "Forest Preserve land in the Adirondacks and Catskills" because of Article XIV, Section 1 of the New York State Constitution, which provides: "The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands."
Under the preliminary revised SGEIS, in the parts of New York where high-volume fracturing will be allowed, site-specific environmental review will be required for gas wells that are drilled within a certain distance of water resources, for shallow wells, and for wells that require water withdrawals that are inconsistent with certain passby flows. The revised SGEIS, according to the recently released executive summary, also proposes to require disclosure of all chemical additives anticipated to be used in fracturing to the DEC, and the DEC reports that it will continue to disclose to the public the chemical additives used in fracturing, with the exception of those that are trade secrets. It appears that the DEC will not disclose the chemicals used in each well but rather will continue to publish a general list of fracturing chemicals used throughout New York; this is not entirely clear from the preliminary revised SGEIS, however. The DEC also proposes to require better casing of gas wells to prevent gas and other substances that flow from the well from mixing with other underground substances, including water; secondary containment structures to catch spills when fracturing chemicals are transferred; approved plans for flowback (wastewater) disposal from fracturing prior to commencing the fracturing operation; a "greenhouse gas emission impacts mitigation plan"; and "Best Management Practices for surface disturbance," among other mitigation measures.
The New York Times reported last week that Governor Cuomo will support fracturing in New York, although few other reports have confirmed this. From the recent DEC developments, however, it appears that the state is continuing to move slowly toward allowing high-volume hydraulic fracturing--with regulatory controls that exceed those applied to other gas wells in the state.
Wednesday, July 6, 2011
One federal appellate judge thinks it's on the verge of doing so. Maybe.
On Friday, the D.C. Circuit decided another Yucca Mountain case, this time dismissing a challenge to the Department of Energy's attempt to withdraw its license application. What's interesting about the case isn't the opinion of the court, which just applies established jurisdictional doctrines, albeit to a particularly convoluted fact pattern (the court held that the matter won't be ripe until the Nuclear Regulatory Commission decides whether to allow DOE to withdraw the license application). Instead, the curious portion of the decision comes in Judge Kavanaugh's concurrence.
For nineteen pages, Judge Kavanaugh talks not about the presence of absence of federal jurisdiction in the case at bar, but instead about Humphrey's Executor, the 1935 case that protected commissioners of the Federal Trade Commission from executive removal and thus helped establish the independence of a select subset of federal agencies. He explains the decision's history, why it leads to (in his view) odd and anti-democratic consequences, and how the Obama Administration's current Yucca Mountain quandaries illustrate Humphrey's Executor's lingering effects. He closes by describing ways in which the Supreme Court and Congress might limit Humphrey's Executor's reach.
Why write all this? None of the discussion is necessary to understand the outcome of the case at bar or the basis for Judge Kavanaugh's concurrence. Nor does Yucca Mountain provide a basis for some bold new insight into the debates about independent agencies and unitary executives, for the current impasse just illustrates the potential, not yet fully realized, for independent agencies to act independently. Instead, Judge Kavanaugh seems to be using this Yucca Mountain decision as a platform to editorialize about the need to overturn Humphrey's Executive. He disclaims any such intent--"the point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned," he tells us--but if that isn't the point, what is?
Where will this lead? Perhaps nowhere. But the current Court obviously has some concerns about independent agencies. And it's no secret that lower court judges will sometimes use their opinions to try to accelerate the Court's doctrinal trajectory. That seems to be the goal here; the most likely, albeit disclaimed, point of the opinion is to let the Court know that a promising fact pattern for a unitary executive opinion is brewing, and to encourage the court to write that opinion when the opportunity arises. Will the Court eventually take the bait? We'll see.
- Dave Owen
The University of Connecticut School of Law has issued a call for papers for the following symposium:
“Legal Solutions to Coastal Climate Change Adaptation in Connecticut”
Conference Date: February 10, 2012
Conference Location: University of Connecticut School of Law, Hartford, CT
Deadline for paper abstract submissions: September 30, 2011
Contact: Dr. Syma Ebbin, Connecticut Sea Grant College Program, University of Connecticut, firstname.lastname@example.org, 860 405 9278
Program website: http://seagrant.uconn.edu/whatwedo/climate/legal/
How to Submit: 2 to 3 page paper proposals should be submitted via e- mail to email@example.com by September 30th. Be sure to include your affiliation and contact information.
Topics of Interest: We invite practitioners, academics, and students in the field of law as well as others with expertise and interest to submit a 2 to 3 page paper proposal that focuses on existing or proposed innovative legal, policy and related incentive-based options for climate change adaptation in coastal environments. We invite papers that lay out the existing legal and regulatory structure in Connecticut as well as in other states, identify gaps and obstacles in these approaches, present innovative and environmentally sound approaches to climate change adaptation and stimulate legal thinking on legal and policy remedies to this issue of international importance. All submitted papers must contain a legal, policy or regulatory approach, solution or tool designed to facilitate climate change adaptation in Connecticut.
Publication of Papers: Submitted papers that are accepted for presentation will be published in a special issue of the Sea Grant Law and Policy Journal, an open access online journal that “provides a forum for the timely discussion and exploration of legal topics of relevance to the Sea Grant network of extension agents, researchers, coastal managers and users, and local decision-makers.”
Tuesday, July 5, 2011
Did you enjoy watching fireworks yesterday? I watched an impressive display over San Diego Bay. But in late May, it looked like San Diego might not have fireworks. In a case filed by the local environmental group Coastal Environmental Rights Foundation (CERF, pronounced “surf”), a judge had ruled that the fireworks show in the San Diego suburb of La Jolla required an environmental impact report under the California Environmental Quality Act (CEQA). And because it wasn’t just the La Jolla fireworks that hadn’t prepared an environmental impact report, the ruling put a bunch of fireworks displays in San Diego into legal limbo.
You might ask: what exactly are the environmental impacts of fireworks? Well we don’t really know, and that is of course part of why CERF was successful in its argument that environmental review was needed. In general, environmentalists are concerned about pollution impacts. As detailed here, fireworks are made with lots of toxic chemicals including charcoal, sulfur fuel, potassium nitrate, perchlorates, strontium (to make red), aluminum (white), copper (blue), barium (green) and cadmium (various colors). In La Jolla, there is particular concern about the effects on local marine life. The lawsuit alleges threats to seals, birds and other coastal wildlife.
Now consider the political ramifications of having a judge agree with environmentalists that the local fireworks displays would be illegal. With a national audience provided by Fox news, San Diego's mayor called the ruling an “abuse of the laws” and said it could affect fireworks displays in other parts of the country. And just a week later, the judge stayed the ruling for 90 days, and this year’s fireworks were allowed to go on.
Is it unpatriotic to challenge fireworks displays? The lawyer in the case, Marco Gonzalez, has taken a lot of heat for it. I like his response: he says it is patriotic to protect water quality and marine species.
- Lesley McAllister
Monday, July 4, 2011
If you are like me and you sit around each day pondering "how do they know how many trees it takes to store 1 ton of carbon?," then today is your lucky day. The folks over at Ecometrica have released a sort of "tree carbon storage for dummies" paper that depicts in a rather straightforward fashion the makeup of a tree that stores 1 ton of carbon.
Ultimately, the amount of carbon stored by a tree depends upon the species, size, local conditions and how the tree is managed. First the size of the stem is measured, including its radius and height. That measurement is then converted into a number representing the stem biomass. From this, the mass of the roots, branches, and leaves can be determined by proportionality depending on the species. So, for a sycamore tree the roots, branches, and leaves are are about 26%, 11%, and 1% of the total biomass respectively. Then, we know that the carbon content of woody material is about 50% of its biomass....and voila! We can now estimate the amount of carbon stored in a tree! Now I can go back to pondering daily how a cassette player works.
- Blake Hudson
Sunday, July 3, 2011
* The New York Times reported that natural gas wells might not yield as much gas as claimed by industry, which could mean more fracture treatments of each well, falling investment values, and higher gas and electricity prices.
* The National Parks Conservation Association issued a detailed report titled, The State of America's National Parks. The report focuses on the major threats facing national parks. And, while none of the threats noted were very surprising (e.g., development at their boards, impacts of visitors, and invasive species), the report is convincing. If for no other reason, the report is worth pursing for the stunning pictures it includes of parks around the U.S.
* According to a report NOAA released this week, 2010 was one of the two warmest years on record.
* Scientific American published an article in three installments (1, 2, and 3) that links specific extreme weather events--rather than just the increased frequency or severity of events--to climate change.