September 3, 2011
Wastewater Battles in Pennsylvania
In the past, I have blogged about the EPA's concerns surrounding the treatment of water that flows back up out of hydraulically fractured wells in Pennsylvania. The wastewater--called "flowback water"--contains some of the chemicals that were originally mixed with water to form the fracturing solution, and various substances picked up underground, including low levels of naturally occurring radioactive materials. The New York Times published an article on February 26 worrying that Pennsylvania's wastewater treatment plants were not adequately equipped to treat the millions of gallons of flowback water from Pennsylvania's many hydraulically fractured Marcellus Shale wells. The EPA then sent a letter stating that "several sources of data . . . indicate that the wastewater resulting from natural gas drilling operations (including flowback . . .) contains variable and sometimes high concentrations of materials that may present a threat to human health . . . . " The DEP responded, citing to tests downstream of the treatment plants' discharges and asserting in a letter to the EPA (Region III) that the water was safe.
In my classes and writing, I have used Pennsylvania as an example of a state that sends much of its fracturing flowback waste through wastewater treatment plants--unlike states like Texas, which primarily rely on Underground Injection Control wells for disposal. During a recent trip to Pittsburgh, though, I learned that the flowback treatment situation in Pennsylvania has changed substantially. Prior to this change, Pennsylvania had implemented special treatment requirements for flowback water sent from centralized wastewater treatment facilities to POTWs, setting monthly average discharge limits for Total Dissolved Solids, chlorides, strontium, and barium released from the plants in 25 Pa. ADC 95.10. Only "new and expanding" discharges were (and are) subject to these limits, however, and grandfathered plants, it appears, continued accepting the flowback waste without having to comply with these new standards.
In April 2011, the Pennsylvania Department of Environmental Protection and Governor Tom Corbett changed the picture, requesting (but not ordering) that gas operators stop sending flowback water to grandfathered municipal wastewater treatment plants in Pennsylvania. It appears that operators generally have taken action in response to this request and are now recycling more flowback water and sending flowback waste across the Pennsylvania border into Ohio. Pennsylvania environmental groups are not so sure that disposal at Pennsylvania treatment plants has ended, though. They filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania this summer, claiming that a grandfathered wastewater treatment plant in Pennsylvania, which is still accepting flowback water and cannot adequately treat it, is violating the Clean Water Act and needs to modify its NPDES permit. The EPA, in the meantime, asked the six leading gas companies in Pennsylvania (through CWA Section 308 requests) to provide more information on their past and current flowback disposal practices. It also sent a letter to Secretary Krancer of the DEP, suggesting that the DEP "seek formal written confirmation of the change of disposal methods since it may affect which POTWs are subject to the federal pretreatment regulations." The EPA also made clear that the DEP should notify the EPA whenever it "becomes aware . . . of the introduction of all new pollutants into POTWs from indirect discharges." EPA may then "determine that additional permit requirements are needed to protect water quality and prevent pass-through or interference."
In sum, it appears that since the DEP's and Governor Corbett's request of gas operators in April to stop disposing of flowback water in Pennsylvania wastewater treatment plants, many have. But in some cases, this has just pushed waste across the border, and some Pennsylvania wastewater treatment plants may potentially still be accepting flowback water. Many thanks to the students and attorneys in Pennsylvania who updated me on the wastewater situation.
If you want a recent case study in wastewater, NPDES permitting, and the general challenges of dealing with large quantities of a relatively new type of waste for a Fall 2011 Environmental Law class, Pennsylvania may provide a good one.
September 2, 2011
Obama EPA Backs Off Smog Regs
If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed. In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:
I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
This decision is interesting for a number of reasons. Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008. Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance. Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.
The decision also shows Obama's cold calculus about who will and will not be on his side in the next election. Environmentalists already have decried this move. But will they vote for him anyway in 2012? The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised.
And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns. In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection. The two go hand in hand. This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis. True sustainability requires both. Is this change a permanent shift or a temporary slide? Only time will tell.
New Public Trust Case
Last week, the Maine Supreme Court issued an opinion that will be of interest to anyone interested in coastal access rights or the public trust doctrine.
The case marks the latest chapter in long legal drama. Maine, unlike many states, allows private ownership rights in the intertidal zone. It traces those rights to an ordinance enacted in 1647 by the colony of Massachusetts (which then included Maine). Those private rights are not exclusive, however; the ordinance qualified the private ownership rights by preserving a public trust easement to use the intertidal zone, and it specifically mentioned fishing, fowling, and navigation as allowed uses. In Bell v. Town of Wells, 557, A.2d 168 (Me. 1989), a closely divided court held fishing, fowling, and navigation were the only public uses protected by the public trust doctrine, and it found unconstitutional a state statute that purported to provide broader access. That decision has received its fair share of criticism, and eleven years ago, in a concurrence in another beach access case, the current chief justice argued that Bell should be overturned. See Eaton v. Town of Wells, 760 A.2d 232 (Me. 2000). Last week, for the first time in over a decade, the court revisited the issue.
The core issue before the court was narrow. Scuba divers were walking across the intertidal zone to go diving. The owner of the intertidal area wanted them to stop. The question before the court was whether the public trust easement encompassed scuba access. The court’s actual holding also is narrow. It declined invitations to rule expansively on the scope of the state’s public trust doctrine, and instead held, unanimously, that the doctrine did allow scuba divers access to the intertidal zone. The justices disagreed on the reasoning, however. Three justices concluded that the “fishing, fowling, and navigation” language in the colonial ordinance was illustrative of a broader and more flexible principle of public access, and found scuba access consistent with that principle. Three other justices (one justice recused himself) wrote that fishing, fowling, and navigation were the only permissible public uses, but concluded that scuba access qualified as navigation. Each opinion contains extensive discussion of the public trust doctrine and of the proper mode of evolution of the common law, and that discussion, rather than the narrow holding, is what makes this a case worth reading.
Despite that fairly thorough discussion, one potentially important question escaped analysis. Neither Bell nor the more recent decision discusses the role of the legislature in common law change. The Maine statute allowing broader public access remains on the books, notwithstanding the Bell decision. Yet that statute did nothing to inform the court’s common law interpretation in Bell. Similarly, last week’s opinion contains no evidence that legislative enactments mattered to the court’s deliberations. Why not? If the common law derives from some mysterious set of deeper principles and ancient texts, their meaning revealed uniquely unto judges like scripture unto priests, then exclusive judicial authority to shape the common law makes sense. But if the path of the law is experience, and if common law should respond to evolving circumstances and societal preferences (as all of the justices seemed to agree it should) shouldn’t a legislative enactment at least inform judicial deliberations? The Maine Supreme Court doesn’t seem to think so. I wonder why not.
Lisa Grow Sun on When Smart Growth Is Dumb
Lisa Grow Sun recently posted her very interesting article, Smart Growth in Dumb Places: Sustainability, Disaster, and the Future of the American City, on SSRN. It very well could prove to be the most significant law review article written on sprawl up to this point and regardless deserves to be on the reading lists of those interested in environmental, disaster, and land use law. It highlights an undeniable but often ignored tension between the disaster planning and environmental planning--a tension that she makes a compelling argument deserves our attention.
Often when policy makers and scholars talk about new urbanism, smart growth, or sustainability, the policy advice that follows is to reinvest or return to urban areas, to grow up and not out, or promote infill development. Often overlooked in this discussion, however, is that density itself might magnify certain types of risks, and even when density alone does not cause problems, many urban areas are built in places particularly prone to disaster—be it by the ocean, along a river, at the base of a mountain, or at the edge of a forest. To make matters worse, if we look at things on a micro scale very often revitalization efforts often are built around and focus development in places that have disaster risks associated with them. Seriously outside of cities in arid climates, almost every big redevelopment effort I can think of is built around a large water body.
Despite the challenges that she identifies, she does not want to put an end to smart growth. Rather, as the title of her article reflects, she just worries when it is happens in dumb places. The problem for environmental planners, however, is that because so much of our development has occurred in dumb places, it does not leave a lot of smart places for smart growth to occur—at least as redevelopment. Figuring out how much we should care about disaster risks seriously increases the complexity of the smart growth/dumb growth line of thinking.
Of course, however, complexity is not something that environmental law and policy have shied away from. I am convinced that she has identified an important tension that we need to take into account if we want to get development/redevelopment right. I hope we are up to the challenge.
Here is the article’s abstract:
One of the many lessons of the recent earthquake and tsunami in Japan is that we cannot mitigate disaster risk through building codes and other structural solutions alone. Location is key to a community’s natural hazard vulnerability. Consequently, the most far-reaching and important question for disaster mitigation today is where we will channel the growth that will be needed to accommodate our expanding population. Yet, both environmental scholars and policymakers are promoting sustainability initiatives that will channel our country’s future growth into existing urban areas that are already extremely vulnerable to disaster. Indeed, many of these policies - and the legal tools used to implement them - are channeling growth, not only into particularly vulnerable cities, but into the riskiest areas of those cities. This Article is the first to identify and explore this critical tension between disaster mitigation and current sustainability policies.
-- Brigham Daniels
August 31, 2011
Baby Hudson on the Tragedy of the Commons and Herder Rationality
Following on Jonathan Zasloff's Legal Planet post on Molly Bang's "Tragedy of the Commons" book for children, I thought I would announce that my first child, Campbell Lee Hudson, was born recently. Campbell has already begun reading up on Garrett Hardin, Elinor Ostrom, Robert Keohane, Oran Young, and others and has a message he would like to convey (with a little help from daddy's poor photo-editing skills).
- Blake Hudson
August 30, 2011
Climate forecasting: "A pinch of probability is worth a pound of perhaps"
Yesterday, Blake raised the issue of how weather events are used to argue for or against climate change. This gives me an opportunity to share some insight from Dr. David Pierce, a climate scientist from Scripps Institution of Oceanography who graciously gave his time to guest lecture in my climate change law class last week. I'm sure he dumbed things down for us, and I'm not sure I will accurately represent his explanation here -- but I'll do my best.
Dr. Pierce very usefully framed his presentation in terms of climate change myths, calling out myths and showing how the science refutes them. One of the myths he called out was that “Someplace or other got colder … global warming can’t be true!” In response, he explained that forecasting a change in climate (i.e. a rise in global temperature, a rise in rainfall, a loss of glaciers) involves predicting a probability distribution. Take rainfall, as shown in the first graphic. If the prediction is that the amount of rainfall will remain unchanged in the future, then that implicitly means that about a third of places observed will experience dryer than normal years, a third will experience normal years, and a third will experience wetter than normal years. This happens because of natural variability; weather is a chaotic system. If only natural variability is acting, you'd expect about the same number of places to experience wet winters as dry. The fact that any one place experiences increased dryness or wetness does not contradict the forecast that rainfall will remain the same overall. The wetter and dryer places are part of the predicted distribution and are completely consistent with the forecast.
Now consider a climate forecast that predicts less rainfall, as in La Nina years for San Diego. In this second graphic, the probability distribution is shifted to the left, indicating that more years than before will be drier. But, importantly, the climate forecast still contains within it the prediction that a certain (small) number of years will be wetter. It is the same with climate change. The forecast that the average global temperatures will increase means that more places will experience higher temperatures. However, there will still be places where temperatures decrease, and that is part of the climate forecast. Those observations do not refute the forecast, they are consistent with it, as long as you observe many more warming places than cooling places.
The final graphic is a chart of temperature trends over the last 50 years, calculated in 5 degree latitude by 5 degree longitude boxes over the Earth. It shows that most places have warmed, but some have cooled. And that is exactly what climate scientists would have predicted. In fact, you can see this shift in the distribution in record high and low temperatures as well. In the 1950s, the U.S. experienced about the same number of daily record high and low temperatures. But by the 2000s, there were twice as many record highs as record lows. We will still get record low temperatures decades from now, but there will be many record highs for each record low.
-- “A pinch of probability is worth a pound of perhaps” -James Thurber (American Writer, 1894-1961)
-Lesley McAllister (Note: Thanks to Dr. Pierce for lecturing to my class and sharing these graphics. Any errors of explanation and interpretation are mine.)
August 29, 2011
Hurricanes/Heat = Global Warming, but Cold/Snow = Lunacy? How to Handle Isolated Weather Events When Discussing Climate Change?
As this is an issue that I have struggled with for some time now, I write this blog post to ask for advice, guidance, and the perspective of others - so please chime in with comments.
It seems to be the bane of existence for those familiar with climate change science - the person who posts on Facebook or Twitter, or who boldly asserts in the classroom or office, "it was a record low in X city, Y state today - suuuurrreeee global warming is real. And there's been record snowfall to boot!" These types of misunderstandings of climate change science have resulted in a shift from "global warming" terminology to "global weirding" or "climate change" - a recognition that though the earth's overall temperature will increase over time, climatic conditions will be quite variable in any given location.
Stephen Colbert has parodied this thought process quite well in the following video:
When people make comments that cold weather days must disprove global warming, Colbert quips, "Folks, that is simple observational research: whatever just happened is the only thing that is happening . . . [Currently] it is dark outside. Now based on this latest data, we can only assume that the sun has been destroyed. The world has plunged into total darkness. Soon all our crops will die and it's only a matter of time before the mole people emerge from the center of the earth to enslave us in forever night....thanks a lot Al Gore."
Even though I agree with the silliness of such arguments, I cannot help but wonder what our responsibility is as educators, scientists, and other professionals in the field when it comes to isolated weather events that appear to support "our" position. Over the course of this summer I have seen numerous posts on Twitter and various news articles and blog posts from both environmental groups and professionals asserting what essentially sounds a lot like "See! Record heat! Climate change is real!" Also, I saw even more posts, and some articles, during recent Hurricane Irene that seemed to highlight this one hurricane event as proof of climate change. Don't get me wrong - I certainly trust the statistics on warming trends and increased hurricane frequency and intensity over the last few decades. There is little doubt that those trends reinforce and form part of the foundation of climate change science. But my question is more about framing the issue. It is really hard for me to criticize someone for arguing that cold weather events disprove global warming, and then turn around and say that a single hurricane or a hot month of July support my "position." This is despite the fact that some may say "well sure, of course it is ok to do just that, because we are right. The data is on our side. So of course it is ok to point to these events as proof." That may very well be true, but something about that approach just doesn't feel right. I think it may be one of those arguments we should consider dropping so as not to allow the delivery of the message to disrupt or confuse the message itself.
In the end, I believe that if those pointing out the reality of climate change do not want to sound exactly like those they criticize, it might be in our best interest to not use hyperbolic sounding arguments based upon isolated weather events. And trust me, this is hard for me - I like hyperbole. But maybe we should stick to the whole story, and not just parts of it? What are your thoughts?
- Blake Hudson