July 30, 2011
EPA Proposes New Air Standards for Oil and Gas Wells
In response to a court order arising from a complaint filed by WildEarth Guardians and the San Juan Citizens Alliance and a resulting consent decree, the Environmental Protection Agency has proposed New Source Performance Standards and revised National Emission Standards for Hazardous Air Pollutants for air emissions from oil and gas production. For NSPS, the EPA has long had a source category for crude oil and natural gas production, but its only standards under this category have been for natural gas processing plants. The proposed rule would, for the first time, set NSPS for volatile organic compounds from producing wells. Since 1992, the EPA also has included oil and gas production as a major source for which a NESHAP must be set, and in 1999 the EPA set maximum achievable control technology standards for this source. Its proposed rule revises the MACT standard for storage vessels and small dehydrators used in oil and natural gas production. The proposed rule does not change the EPA's area source (generally available control technology) standards for oil and gas production.
Notably, the EPA's rule would require "reduced emission completion" ("green completion") and pit flaring for new hydraulically fractured and refractured wells; these techniques capture and reduce VOCs emitted. (The EPA considers refracturing to be a modification and thus to trigger NSPS.) Chesapeake Energy claims that reduced emission completions are not "available for every well that is drilled and completed" because the process "requires special equipment and the installation of a natural gas gathering line and sales meter prior to well flowback and testing."
For hazardous air pollutants from oil and gas production, the EPA's rule would apply MACT 95 percent emission reduction standards to "every storage vessel at major source oil and natural gas production facilities" and would set a new standard for benzene, toluene, ethylbenzene, and xylene (BTEX) emissions from small glycol dehydrators used in oil and gas production. These dehydrators remove water and hazardous air pollutants from natural gas. "The proposed MACT standards for the subcategory of small dehydrators at oil and gas production facilities would require that existing affected sources meet a unitspecific BTEX limit of 1.10x10-4 grams BTEX/standard cubic meters (scm)-parts per million by volume (ppmv) and that new affected sources meet a BTEX limit of 4.66 x10-6 grams BTEX/scm-ppmv."
Energy Law Treasure Trove
Earlier this year, the University of Utah law school hosted what turned out to be a great symposium on the topic, "The Future of Energy Law." The articles from that conference have just been published, and offer what can only be described as a virtual treasure trove for energy law enthusiasts.
They feature some of the brightest minds in the game. To wit:
- The Past, Present, and Future of Energy Regulation by Dick Pierce
- Controlling Greenhouse Gases from Highway Vehicles by Arnold Reitze
- Residential Renewable Energy: By Whom? by Joel Eisen
- The Next Step: The Integration of Energy Law and Environmental Law by Amy Wildermuth
- "Our Generation's Sputnik Moment": Regulating Energy Innovation by Joe Tomain
- The Future of Energy Law - Electricity by Ed Comer
We were lucky enough to hear in person these emerging ideas in what is an ever-changing field here in Salt Lake City earlier this January.
They're now all available for download as well.
July 29, 2011
In Case You Missed It - The Week of July 24-July 30
President Obama announced that the EPA and thirteen major automakers reached agreement on to raise fuel economy requirements by Model Year 2025 to 54.5 miles per gallon for cars and light-duty trucks (EPA)
A new study suggests that Yellowstone National Park will be fundamentally altered by wildfires as a result of climate change. (Intl. Business Time)
Small local water utilities sue large-farmer-dominated water banks in California state court (NY Times)
The Washington State Supreme Court ruled that Kittitas County's land-use decisionmaking failed to protect groundwater resources (Yakima Herald)
The EPA proposed new requirement for emissions from wells that are hydraulically fractured, including the capture of 95 percent of volatile organic compound (VOC) emissions (EPA)
The New Mexico Supreme Court ruled unanimously to allow an environmental group to participate in the Environmental Impact Board's meetings regarding public utility greenhouse gas regulations (New Mexico Independent)
July 28, 2011
Environmental Law, Day 1
It's now that time of year when I realize that summer will soon end, classes will start, and my syllabus needs an update. Which has me thinking about a recurring problem with my environmental law course: day 1.
I know what I want to accomplish. I want to give the students some sense of the content of the course, and why it matters, and I want them to walk away thinking that the course will be intriguing, engaging, and challenging. I also want to convince them--lost cause, perhaps--that in my classes, at least, they should never follow Twitter or Facebook, buy anything on EBay, check espn.com, or do all the other things I know perfectly well that some of them will spend half the semester doing. And I want to give them a story or case or other little tidbit that provides a preview of and window into the wonders of environmental law. Instead, I usually wind up providing a somewhat dull course summary, then do some climate change 101, then try to extract participation from students who seem like they just need a little more coffee to get through the post-summer hangover. Class two usually is great, as is everything else until the students crash into the Clean Air Act like bugs spattering onto a windshield. But class one, to me, usually feels like a dud.
So, dear readers, what to do? This blog hasn't provoked a lot of commentary, but we know you're out there. Professors, how do you dazzle your students on day one? Students, current and former, what works for you? I'd love to know.
July 27, 2011
Salazar Names Marcilynn Burke as Acting Assistant Secretary for Lands and Minerals Management
The Department of Interior just put out the following press release. For those of us who know Marcilynn, it can only make us more optimistic about the direction Interior is going. One thing omitted below is that she is also one of the most thoughtful and friendly people ever to grace the halls of academia.
Salazar Names Marcilynn Burke as Acting Assistant Secretary for Lands and Minerals Management
WASHINGTON, D.C.—Secretary of the Interior Ken Salazar today named Marcilynn Burke to serve as Acting Assistant Secretary for Land and Minerals Management at the Department of the Interior. Burke, who currently serves as Deputy Director for Policy of the Bureau of Land Management, will take over for Wilma Lewis, who is being commissioned as Judge for the District Court of the Virgin Islands.
“Marcilynn’s broad experience with the Bureau of Land Management and as an expert in natural resource matters will greatly benefit Interior’s energy and conservation priorities,” Salazar said. “She is an outstanding choice to ensure Interior’s programs address the challenges of managing our public lands and resources in the 21st century.”
Burke took leave in August of 2009 from the University of Houston Law Center (UHLC) in Texas, where she is an Associate Professor of Law, to serve as the Bureau of Land Management Deputy Director for Policy under Director Bob Abbey.
At UHLC, she teaches environmental law courses on land use and its management, natural resources, and property. She has also served as visiting assistant professor of law at the Rutgers School of Law in Camden, N.J., and at Seattle University School of Law.
Burke was previously with the law firm of Cleary, Gottlieb, Steen & Hamilton in Washington, D.C., where she focused on environmental law, antitrust, and civil and criminal litigation. She clerked for the Honorable Raymond A. Jackson of the Eastern District of Virginia.
Burke received her bachelor’s degree in International Studies from the University of North Carolina at Chapel Hill where she was elected to Phi Beta Kappa. She obtained her law degree from Yale Law School where she was an editor for both the Yale Journal of Law and Feminism and the Yale Journal of International Law.
Former Assistant Secretary for Land and Minerals Management Wilma Lewis was nominated by President Obama for a judgeship in the District Court of the Virgin Islands in March, 2011. She was confirmed by the Senate in June and will be commissioned shortly in that position.
“Wilma has served this Department with distinction and I am grateful for her leadership over the past two years,” Salazar said. “I am confident Wilma will make an excellent addition to the bench and the people of the Virgin Islands are lucky to have her.”
The Assistant Secretary for Lands and Minerals Management helps establish Interior policies and provides oversight to the Bureau of Land Management, Bureau of Ocean Energy Management, Regulation and Enforcement, and the Office of Surface Mining Reclamation and Enforcement. The assistant secretary oversees management of public lands and resources, including production of federal energy and mineral resources, both onshore and on the Outer Continental Shelf.
-- Brigham Daniels
July 26, 2011
DeChristopher's Sentence Warranted
Today Tim DeChristopher was sentenced for two years and fined $10,000 for impeding an auction for natural gas leases on public lands in Utah. According to DeChristopher, he disrupted the auctions because he was worried about climate change and wanted to do something about it.
While DeChristopher and his supporters are anxious to hold him out as heroic climate change fighter, for reasons I outlined a few months ago, I think it is a mistake to consider him a hero. There were many smarter ways to fight the auction at issue (ways that have since proven successful). Given that, DeChristopher's choice to break the law was ill advised, and his choice to continually thump his chest in the aftermath was severely misguided.
While I feel somewhat bad for him, it is because I believe he was right in thinking climate change is a problem we need to address. Certainly, he is going to get a lot of sympathy over the next couple of days from well meaning people worried about climate change. While I respect the sentiment embedded in that point of view, I believe the judge in this case was right to send him to prison.
Civil disobedience is a valuable and important tool. However, one cannot allow for civil disobedience in a law-abiding society when there are many ways to address the problem at hand through legal means, particularly when those means are much more likely to create the desired change than the civil disobedience itself.
Given that the judge will be blasted by many in the public, his willingness to uphold the law deserves our respect. He has mine.
-- Brigham Daniels
Overallocation and Reform in the EU ETS
There are some who say that the European Union Emissions Trading Scheme (EU ETS) is a big failure and others who say it is a great success. I am not going to pronounce judgment today. I’d just like to suggest that the EU ETS is a good example of a cap-and-trade program that has been able respond to overallocation and other problems through ongoing reform.
The EU ETS, initiated in 2005, regulates about 11,500 stationary sources in 27 European countries. It covers about half of all CO2 emissions in the region. The EU ETS’s first phase covered the years 2005 through 2007. By 2006, it became clear that there was an oversupply of EU ETS allowances market, and allowance prices collapsed. The second phase of the program, which spans 2008 to 2012, is designed to ensure that Europe meets its Kyoto Protocol emissions reduction commitment. Tighter caps were imposed for this phase of the program, but due to the economic recession in these years, it appears that there is still an oversupply of allowances. Allowance prices haven’t collapsed, in part because allowances can be banked for the third phase of the program, covering the years 2013 to 2020. In the third phase, more stringent emissions caps are being imposed that are aimed at reducing the emissions of the regulated entities to 21% below 2005 emissions by 2020.
The almost 7 years of the EU ETS have been a case study in cap-and-trade tinkering. Notably, the first phase is often referred to as the “pilot phase.” The EU apparently recognized that it could not set up a cap-and-trade system that would work for the long term at one fell swoop. Unlike the Acid Rain Program and RGGI (see my posts on overallocation in these programs here and here), the EU ETS had reform opportunities built into the program, and the EU has used them to progressively tighten caps as well as add new types of regulated sources and increase the number of allowances auctioned. One of the major lessons to be taken from the EU ETS is that cap-and-trade programs should be designed to enable reforms in the cap and other important features based on the performance of the program.
- Lesley McAllister
July 25, 2011
Timothy Mulvaney on "Proposed Exactions" in Takings Law
Here is the abstract:
"In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it."
- Blake Hudson
July 24, 2011
In Case You Missed It - The Week of July 17-July 23
- The U.N. Convention to Combat Desertification released a report detailing the latest figures, graphics and maps on desertification, land degradation and drought.
- Duke University researchers report that children living close to airports have higher blood lead levels than other children.
- The California Air Resources Board has proposed rules to tighten vehicle emissions standards even further by 2025, such that new vehicles emit 75% less smog-forming pollution than today's vehicles.
- Environmental and public health groups filed suit against the EPA for missing a six-month deadline to determine that the Los Angeles Basin failed to meet the ozone standard in November 2010. (LA Times)
- Mayor Michael Bloomberg donated $50 million to the Sierra Club to use in its efforts to decommission 1/3 of existing coal-fired power plants by 2020. (NY Times)
- To pollute or not to pollute? A new study finds that particulates in the atmosphere have slowed global warming by as much as one-third.