Friday, September 16, 2011

Yucca Mountain Dies, or Maybe It Doesn’t

Last Friday, the Nuclear Regulatory Commission added another twist to the already rather messy legal saga of Yucca Mountain.  The Commission deadlocked in a vote on whether the Department of Energy had the legal ability to withdraw its application for site approval.  That leaves the project’s legal status in doubt, and the near-inevitability of additional litigation further clouds the picture.  The project’s financial status, however, remains clear, and the NRC, citing “fiscal limitations,” also voted to close down its review of DOE's license application.

Based on press coverage and political rhetoric, one might think that political considerations alone are driving Yucca Mountain’s apparent demise.  The administration’s position, the story goes, derives from Harry Reid’s clout and Nevada’s swing state status.   But while there’s no doubt  that the political calculus is very, very important, there is another part of the story.  The legal hurdles to continuing with the Yucca Mountain project were substantial, and perhaps even more substantial than the legal complications involved in shutting it down.

Before I explain, a little disclosure.  From 2003 to 2007, I worked on the legal team Nevada had assembled to fight the repository.  What follows reflects my own judgment and isn’t an attempt to state Nevada’s legal position, but I, like any lawyer, probably view my own former clients’ positions through rose-tinted lenses.  Even with some accounting for my own biases, however, I still think Yucca Mountain was in legal trouble.

To understand why, one needs to know a little about the curious legal structure of the licensing process (discussed in more detail here).  In 1982, in the Nuclear Waste Policy Act, Congress initially set forth a process for choosing a disposal site for high-level nuclear waste.  The Department of Energy was to select a site and to develop and, if appropriate, submit a license application for that site, and the Nuclear Regulatory Commission was to review that application.  The NRC would evaluate the consistency of the application with safety standards set by EPA and by the NRC.  In 1987, Congress designated Yucca Mountain as the sole site to be studied for a national nuclear waste repository.  Then, in the Energy Policy Act of 1992, Congress imposed some additional constraints on the process of setting safety standards.  Most importantly, the standards were to be “based upon and consistent with the findings and recommendations" in a report prepared by the National Academy of Sciences.

That last requirement proved crucially important.  In their first attempts at Yucca Mountain safety standards, EPA and the NRC tried to set standards that would expire after 10,000 years.  That approach would have meant that even if DOE’s modelers predicted spikes in radiation levels after 10,000 years, the repository still could be licensed.  But in NEI v. EPA, 373 F.3d 1251 (D.C. Cir. 2004), the D.C. Circuit held that the agencies’ approach was not “based upon and consistent with” the NAS report, which had called for sustaining the standards through the time period with the highest predicted doses.  The court’s decision sent EPA, the NRC, and DOE back to the drawing board, and without a safety standard, the repository could not be licensed.

The decision put EPA and the NRC in a difficult spot.  The simplest response to the D.C. Circuit’s decision would have been to simply extend the pre-10,000 year safety standards through the period of peak dose.  But if EPA and the NRC did that, the license application would almost surely fail, for DOE’s models predicted doses would remain well above that standard for hundreds of thousands of years.  Only during the initial period, when the modelers predicted that engineered containment systems would keep the waste isolated from groundwater, were doses predicted to remain low.  In the Bush Administration, at least, passing a standard that the site couldn’t meet was a non-starter.   But writing higher standard the license application could actually meet would have meant abandoning long-established nuclear regulatory practices, disavowing past reasoning, and creating other potential inconsistencies with the NRC report, among other problems.  In a 2005 proposed rule, EPA tried that latter approach, and the result was a two-tiered standard (15 millirems before 10,000 years; 100 millirems afterward) that agency lawyers cannot have had any desire to defend.  In 2008, the Bush Administration finalized the proposed standard, retreating from some of the legally questionable rationales but retaining a dramatic difference between the pre- and post-10,000 year standards.  That would have left the Obama Administration with a difficult legal choice if it had wanted to proceed with the repository: it could try to license the repository under dubious legal standards, or could withdraw those standards and try to substitute something else.

The point of all of this is not that these legal challenges actually are driving Yucca Mountain’s demise.  Politics and policy preferences probably mean more to this presidential administration—to any presidential administration, really—than the technical constraints of environmental law.  But they clearly did complicate the Bush Administration’s efforts to promote the repository.  And they do provide a reasonable justification, if not the actual justification, for the Obama Administration’s unwillingness to do the same.

- Dave Owen

September 16, 2011 | Permalink | TrackBack (0)

Thursday, September 15, 2011

From Oil To Plastic and Back Again

It is easy to think about the utilization of finite resources as a linear process.  How do we reverse the destruction of natural capital and the inefficient allocation of the finite land base caused by urban sprawl? Well, there is Detroit, where the city is sprawling inwards as formerly developed lands are returning to their natural state (albeit not under favorable human welfare conditions). Similarly, once we convert finite petroleum resources to other products, how can we reclaim the product to extend the life of the finite petroleum resource base?  Yet this is exactly what one plant in Ohio is doing with plastic - providing a way for you to "refuel your car with old plastic trash." The plant, built in part by Vadxx Energy, plans to use a process called "thermal depolymerization" that can create a new domestic oil and natural gas supply of 80,000 barrels a year by converting old bottles from landfills.

Fortunately for landfills and those of us who care about the waste disposal problem facing the U.S. and the world in general, there has been an increase in investment into these types of projects. Once again demonstrating the complexity of attacking one environmental problem with a seemingly effective solution, however, plastics as fuel can give rise to other environmental issues. I often tell my class that for all of the problems associated with plastic, at least it does serve the purpose of sequestering carbon. Perhaps I can no longer say that, though I can be less concerned about landed disposal of plastic waste. Often in any environmental policy choice it seems we can't win without losing something - often forced to choose the lesser of two evils. But perhaps Michael Coren said it best, "as long as we're using oil, we might as well find ways to reuse it."

- Blake Hudson 

September 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 13, 2011

The Stabilization Wedge Game, Updated for 2011-12

As part of introducing my climate change class to mitigation, we play Stephen Pacala and  Robert Socolow's Stabilization Wedge Game.  It works well, but it requires some updating.

A little background:  In 2004, Pacala and Socolow (P&S) published an important article in Science that conceptualized the world’s need to reduce greenhouse gas emissions as the task of choosing wedges, where each wedge is a strategy or technology that would avoid the emission of 25 gigatons of carbon (or about 92 gigatons of CO2) over a 50 year period.  P&S posited that seven wedges would be necessary to stabilize the atmospheric concentration of carbon dioxide below 500 ppm.  They set forth 15 wedge possibilities: for example, doubling the fuel efficiency of the world’s cars; increasing by 50 times our current solar power generation capacity; and eliminating tropical deforestation.  To make the ideas in the article accessible to all, they developed the Stabilization Wedge Game, in which groups discuss wedge options and choose which seven they want. (And don’t miss the hilarious music video below!)

I started using the game in my climate change law class in 2008, and it has worked well with some necessary updating. In 2009, the authors themselves updated the game.  Because emissions had grown since 2004, the game was updated to require that players choose eight wedges rather than seven.  In my class, we still play the game with eight, but it is important to know that other scientists have found that many more wedges will actually be needed.  Joe Romm has blogged that we need 12 to 14 wedges in four decades to keep CO2 concentrations under 450 ppm.  In 2010, another article in Science argued that P&S were too conservative in their baseline assumptions and that 18 to 25 wedges are actually needed. 

Also, it is not just the number of wedges, but also the substance of wedges that requires updating. Here are the changes that I made this year, drawn primarily from blog posts here, here and here by Joe Romm at Climate Progress.

1) I eliminated several of the original wedges, namely Carbon Capture and Storage (CCS) Hydrogen, CCS Synfuels, and Wind Hydrogen.  CCS and hydrogen technologies have not turned out to be as feasible as the authors thought.  I retain the wedge that involves CCS from traditional fossil fuel plants.  

2) I added the following 4 wedges:    

Forest storage: A wedge is gained by replanting forests over an area the size of the continental US;

Wind for vehicles: A wedge is gained by installing 2000 GW of wind capacity to power plug-in hybrids and electric vehicles.  This amount is about 40-times the wind capacity we have today;

White roofs: Turning all of the world’s roofs and pavements “light” over the next 20 years provides an albedo change that offsets about a wedge-worth of emissions;

Concentrated solar power (solar thermal electric): A wedge requires 2000 GW.  Currently about 1.2 GW are online worldwide, see list of plants worldwide.

If you want to use this game in your classes, you might also be interested in a previous post of mine on the Teaching Climate Law blog with some further ideas for discussion after the game is played. 

- Lesley McAllister


September 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Looming Preemption Battles in Appalachia?

The Wall Street Journal reports that two ballot measures in Pennsylvania--in Peters Township and State College--have proposed to ban natural gas extraction, and the town of Warren is considering a similar ban.  The Journal believes that these are the first voter-led anti-gas provisions.  Several other Pennsylvania, New York, and West Virginia towns, including Pittsburgh, Ithaca, Morgantown, and Oneonta, among others, already have attempted to ban gas extraction or hydraulic fracturing for gas through city council, town board, or common council votes.  It is not clear, though, that these bans-- whether enacted by town governments or citizens--would hold up in court if challenged. Indeed, a county court already has struck down the attempted ban by Morgantown, West Virginia.

Both Pennsylvania and New York expressly preempt local regulation of oil and gas extraction.  Pennsylvania's Oil and Gas Act reads: "Except with respect to ordinances adopted pursuant to the ... Municipalities Planning Code, and the ... Flood Plain Management Act, all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded." 58 Pa. Cons. Stat. 601.602 (2011) (emphasis added).  New York similarly provides that "[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law."  NY Envtl. Conserv. 23-0303 (2011). The Supreme Court of Pennsylvania has determined that towns may enact "traditional zoning regulations that identify which uses are permitted in different areas of the locality, even if such regulations preclude oil and gas drilling in certain zones."  Range Resources Appalachia LLC v. Salem Tp., 600 Pa. 231, 236 (2009) (citing Huntley & Huntley, Inc. v. Borough Council of the Council of Oakmont, 600 Pa. 207, 223 (2009)).  Municipalities may not, however, "attempt . . . to enact a comprehensive regulatory scheme relative to oil and gas development within the municipality."  Range Resources, 600 Pa. at 240.  The New York Supreme Court of Erie County similarly has held that a town may not impose bonding and permit fee requirements only on oil and gas wells because this impermissibly singles them out and is preempted by New York's Environmental Conservation Law.  Envirogas, Inc. v. Town of Kiantone, 112 Misc.2d 432, 434-35 (N.Y.Sup. 1982).  West Virginia, in contrast, does not have a clear preemption provision for local regulation of oil and gas extraction, but in August, a county court determined that the state has "assumed control of a particular subject of regulation" by enacting a "comprehensive regulatory scheme" for environmental control of oil and gas drilling--a scheme solely implemented by the West Virginia Department of Environmental Protection that does not leave any room for local regulation according to the court. 

Yet another interesting jurisdictional conflict in gas regulation may arise from the Delaware River Basin Commission's proposed regulation of fracturing in the Basin.  These regulations would require bonding requirements and fees in addition to state bonding mandates (see page 21--"The financial assurance required by this Section is separate from any financial assurance provided to the host state in accordance with state regulations") and a nonpoint source pollution control plan for certain well sites--a plan that the Commission concedes may require an "Administrative Agreement between the Commission and the host state." The DRBC regulations also would require gas well pad sites to be set back 500 feet from wetlands, water bodies, and other water sources, whereas Pennsylvania, a member state of the Delaware River Basin Compact, only mandates a 100-foot well setback from wetlands greater than one acre and from streams, springs, and bodies of water.  58 Pa. Cons. Stat. 601.205(b) (2011).  New York, in turn, (also a Compact member) would require a "site-specific" assessment only for well pads within 150 feet of streams, storm drains, lakes, or ponds.  Whose regulations will win?  Very likely the DRBC's for gas development within the Basin, if and when its regulations emerge from litigation.  New York and Pennsylvania, after all, agreed to be part of the Delaware River Basin Compact, which provides that state projects affecting water resources and "related to powers delegated to the commission . . . shall be undertaken in consultation with the commission."  The states also are voting members of the DRBC and could object to the regulations through the voting process, and, as New York has suggested, rules of the DRBC are of a federal nature (see New York complaint arguing that "[t]he development of the DRBC Regulations authorizing natural gas development within the Basin under the Compact . . .  is a 'federal action"); these rules likely sit on a higher peg than state regulations. 

Questions about the interaction between federal and/or regional regulation of gas drilling and certain state regulations, as well as state preemption of local controls on gas drilling, will be increasingly important, particularly as New York moves slowly toward allowing high-volume hydraulic fracturing in the Marcellus Shale--an activity not yet permitted in the state. 

-Hannah Wiseman


September 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 11, 2011

In Case You Missed It - The Week of September 4 to September 10

Government projections warn that 1600 properties in Wales could be completely inundated by rising sea levels.

* Arctic sea ice area reached its lowest point since satellite tracking in 1972:  


* Average per capita water use has dropped by 30% in Las Vegas.

* The Annual Review of Marine Science has issued a report on climate change impacts on marine ecosystems.

* A large scale electricity blackout in the U.S. Southwest and Mexico is a "reminder of power grid vulnerabilities."


September 11, 2011 | Permalink | Comments (0) | TrackBack (0)