September 24, 2011
Climate Change Versus Clean Energy: How Can We Move Forward?
Working on climate change over the last several years has consistently pushed me to expand my comfort zone and explore new frontiers. Although I first approached it as an international law scholar, I soon became intrigued by the transnational networks of localities, states, and provinces taking action and the nuances of their place-specific strategies. More recently, as clean energy becomes the more politically viable proxy for engaging climate change (for example, in President Obama’s latest State of the Union address), I’ve begun learning the complex fabric of energy law and the uneasy energy/environment intersection (with the help of a really interesting discussion of the intersection by Lincoln Davies). I find myself immersed in new challenges again, as I try to wrap my head around SmartGrid, energy segregation, and the role of small cities and suburbs in addressing climate change even as I also worry about the turn towards geoengineering in the desperate search for ways to address climate change and nascent and fragmented accompanying governance approaches and more generally about the lack of viable international-level approaches for getting emissions down at the pace scientists say are needed.
As part of all of this, I’ve participated in some really exciting discussions these past few weeks of both climate change and clean energy where I’ve learned a great deal and been impressed at how interdisciplinary the conversations are becoming. But I always walk away from climate change and clean energy dialogues feeling very differently: depressed after the climate change ones and buzzing with new possibilities after the clean energy ones.
While there are significant new developments on climate change—I learned so much from being included in the conversation at the conference hosted by the University of Melbourne about Australia’s proposed climate change law and the resulting expert submission—the consensus always seems to be that nothing happening on the mitigation side is close to enough. In fact, in his keynote address following our climate change panel at a recent conference at Case Western on whether there is a crisis in international law, Richard Goldstone said that while there was not generally crisis in international law but rather in its implementation, climate change was one of the areas of real crisis. I agree. Each year, I understand new pieces of climate change law better, and the more I know, the more discouraged I become about the big picture (we are already well above 350 parts per million of carbon dioxide in the atmosphere—around 390 as of August 2011—with no meaningful plan for staying below the revised goal of staying below 450 parts per mission). I don’t know how to inject the nuance I think is needed into the politicized discussion, I don’t know how to garner the requisite political will, and it will be really hard to catalyze the creative governance approaches needed to transform the action going on outside of the international and national levels into a viable transnational strategy.
With clean energy, huge challenges also loom, but they somehow feel more manageable. Working on the marriage between science, technology, engineering, public policy, and law needed to advance these approaches is exciting. People across the political spectrum often are able to embrace the win-wins that energy efficiency paired with new technology can bring. We have a long tradition of governmental involvement in infrastructure in this country, and even if the politics and money aren’t yet there, it seems conceivable that they will get there and that we will invest in our grid. After a recent Smart Grid conference here at the University of Minnesota, I wanted to go read, take classes, and maybe even take on yet another degree.
The problem is that I know that all this excitement doesn’t solve the looming crisis of climate change. Clean energy solutions can’t replace meaningful progress on climate change—they are unlikely to bring mitigation quickly enough and they often don’t help focus energy on adaptation. But they do help because they get more mitigation than would have happened otherwise.
So where to go from here? In this country, we have a presidential election going on (yes, I know it’s not for over a year—but we’ve had a lot of debates and stump speeches already). I hope we can find a way to stop fighting and talk about these challenges in a meaningful way that cuts across what divides us. We need to make progress on both of these issues. Clean energy shouldn’t get buried in our fights because there is broad agreement on the need to move forward as we get increasingly behind other countries. And we need to stop focusing on what we disagree about on climate change science, and focus on what it would mean to be cautious in the face of risk (since almost everyone acknowledges at least some level of risk). On my discouraged days, I have no idea how we can climb this mountain. But on the good days, like this morning, I have hope that we can be thoughtful and move forward if we keep talking, acting, and building bridges (and transmission lines for renewables) that go somewhere.
Cross-posted at IntLawGrrls.
September 23, 2011
The Latest on Chemical Disclosure
You may have thought that you'd get a week off from hearing about hydraulic fracturing, but you won't. Sorry. For anyone teaching about chemical disclosure under the Emergency Planning and Community Right-to-Know Act and the Occupational Safety and Health Act, hydraulic fracturing provides a nice case study. EPCRA and the OSH Act require oil and gas operators to keep material safety data sheets on site for certain hazardous chemicals in certain quantities, but this doesn't give the public much access to information, and some of the chemicals used do not fall within the OSH Act's and EPCRA's hazardous definitions. States have, however, jumped on the disclosure bandwagon and have begun to augment these limited disclosure requirements. Texas passed one of the more comprehensive laws this summer, requiring disclosure both of the OSHA chemicals and all other chemicals used in fracturing--and that the chemicals be disclosed to the public, not just regulators. Arkansas (see Rule RB-19), Colorado (click on "Final Amended Rules," then "COGCC Amended Rules," then "200 Series General Rules" and search for "chemical inventory"), Louisiana, Montana, North Dakota (see Rule 43-02-03-27.1), and Wyoming (click on the plus symbol next to "Chapter 3: Operational Rules, Drilling Rules" and then "Section 45. Well Stimulation") for example, have implemented or proposed to implement similar requirements, although not all of these states require disclosure of all chemicals or require disclosure to the public; some only mandate disclosure to certain state agencies and health officials. New York is similarly proposing to require disclosure in its preliminary revised Supplemental Generic Environmental Impact Statement.
Interestingly, several states require disclosure of chemicals through the voluntary disclosure website, FracFocus.org, recently formed by the Ground Water Protection Council (a group of state regulators) and the energy industry. Many of the state disclosure rules allow operators to claim trade secret status for chemicals, although some provide exceptions to trade secret protection when disclosure is needed in emergency situations. Texas allows landowners of sites where hydraulic fracturing occurs and those next to the sites, as well as certain state agencies, to appeal trade secret status claims. It appears that states are slowly coming to understand that the public wants to know about the chemicals used in oil and gas development, which is now closer to our backyards as new technologies allow extraction in previously undeveloped formations.
September 20, 2011
A Win for the Insurance Industry: No Duty to Defend against Climate Change Nuisance Claim
Remember the Kivalina v. Exxon Mobil Corp. case? Well, the Ninth Circuit hasn’t issued a decision, but the Virginia Supreme Court handed down an important ruling that relates to the case last Friday. The Virginia court ruled that the insurance company of a Kivalina defendant didn’t have a duty to defend against Kivalina’s claims because there was no "occurrence" or "accident" that triggered a duty to defend. The case is AES Corp. v Steadfast Insurance Co. (decision here).
The Kivalina case itself had been stayed pending the US Supreme Court’s decision in Connecticut v AEP this past July. Presumably, there has been additional briefing regarding that case’s impact, and the Ninth Circuit will take the case up again soon (and likely send plaintiffs to state court!).
September 19, 2011
NEW BLOG - "brazenandtenured–law politics nature and culture"
Our friends at the University of Colorado Law School, Professors Sarah Krakoff and Pierre Schlag, have started a new blog, "brazenandtenured." As Professor Krakoff states, the blog is unique and is distinct from many other environmental law blogs in that it "is more in the nature of mini-essays, commentary and reviews than news or news analysis. Also, while it often touches on environmental and natural resource subjects, it is not confined to those." They have already posted some very interesting items, and I hope you will consider subscribing.
- Blake Hudson
September 18, 2011
In Case You Missed It - The Week of September 11 to September 17
* Kaid Benfield, who directs the Sustainable Communities and Smart Growth program at the Natural Resources Defense Council, co-founded the LEED for Neighborhood Development rating system, and co-founded of Smart Growth America reflected in The Atlantic on the legacy of 9-11 for communities and built environment.
* The U.S. Environmental Protection Agency announced “the release of Plan EJ 2014, a three-year, comprehensive plan to advance environmental justice efforts in nine areas, including rulemaking, permitting, enforcement, and science.”
* The U.S. Environmental Protection Agency announced that it will not meet its September 30 deadline for issuing greenhouse gas emissions regulations regarding power plants and other major sources.
* A Minnesota wildfire in the Boundary Waters area has burned 100,000 acres, which is the largest wildfire in the state in recent history.
* Siemens, which is the biggest engineering conglomerate in Europe, announced that it would stop building nuclear power plants worldwide after the German government decided to phase out nuclear power by 2022.
* House Republicans questioned whether the White House rushed approval for a government loan guarantee for Solyndra Inc., a solar panel manufacturer that has since filed for bankruptcy.
* NOAA and FWS have revised regulations related to Loggerhead sea turtle conservation, dividing the species into nine different population groups. It is thought that the division will allow the government to reduce threats to the turtles by increased focus on the localized challenges that they face.