October 1, 2011
In Case You Missed It - The Week of September 25 to October 1
Arctic ice is melting faster than models predict. Models predict an ice-free Arctic by 2100, but current rates of shrinkage suggest an ice-fee Arctic by between 2020 and 2050. (The Economist)
DOE committed $4.7 billion in loan guarantees toward four clean technology projects just hours before the program’s funding expired. (Washington Post)
The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) has been restructured into two new independent bureaus, the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE) to separate leasing activities from regulatory activities. (DOI website)
A study from the Netherlands shows that the per capita emissions of greenhouse gas emissions in China will exceed that of the US by 2017 if the present rate of emissions growth continues (the study is here). (enn.com)
The latest studies show that forests have been absorbing more than a quarter of our carbon emissions, but forest health is at risk because of climate change (with a quote near the end from CU env law prof William Boyd!). (NY Times)
September 30, 2011
Teaching Hydraulic Fracturing
In response to the recent discussion on the Environmental Law Professors' Listserv about teaching hydraulic fracturing, I'd like to provide a few thoughts. I have been following hydraulic fracturing since 2008, and I learn new things about fracturing daily. Unconventional oil and gas drilling in the United States (including fracturing of drilled wells) is expanding so rapidly--and state and local regulation is changing so quickly--that it's difficult to provide one consistent and accurate picture. As of today, though, the following list describes how I would approach a whirlwind classroom tour of hydraulic fracturing:
1) Hydraulic fracturing has been around for a long time--indeed, for more than half a century--and is used to extract both oil and gas. In Coastal Oil v. Garza, the Texas Supreme Court suggested that fracturing has been applied commercially since 1949. Oil and gas operators have used hydraulic fracturing in a variety of formations, including tight sands, shales, and coalbeds (see the somewhat controversial EPA study of coalbed fracturing here), among other formations, and the effects of fracturing may vary substantially depending on the type of formation fractured--particularly the depth at which fracturing occurs. Although fracturing itself is not new, one type of fracturing only emerged within the last several decades and has boomed within the last ten years. "Slickwater" or "slick water" fracturing, developed in Texas's Barnett Shale in the 1990s, is "new" in several respects: It often involves the drilling of both a horizontal and vertical well, and it typically requires large volumes of water--somewhere between two and eight million gallons (or between 1.2 and 3.5, depending on the information source) for each fracture treatment--and small quantities of chemicals (about 0.5 percent by weight).
2) Many of the stages of producing oil or gas from a fractured well are identical to conventional oil and gas well development. An operator constructs an access road and well pad; drills, cases, and cements a well; and temporarily stores on site drilling wastes, including drill cuttings, used drilling mud, and produced water that comes up from the formation when drilled. The operator then disposes of this waste. Depending on the state regulation, some waste may be buried on site or applied to certain land surfaces, while other waste must be sent a landfill, disposed of in an underground injection control well permitted under the Safe Drinking Water Act, sent to a wastewater treatment plant, or disposed of through other methods approved by the state. Depending on state regulation, an operator that drills and fractures a well also completes certain site restoration after drilling and fracturing is finished, as does a conventional developer after drilling. Fracturing also requires additional processes, however, including withdrawing large quantities of water; trucking or pumping in water and storing it in a pit or tank on site or in a centralized impoundment; trucking chemicals on site and mixing them with water; perforating (punching holes in) certain portions of the well casing (although many conventional wells also are perforated); treating the shale around the wellbore with an acid to clean it; injecting water and chemicals into the well at high pressure to fracture the shale around the well and/or expand existing fractures; injecting "proppant" into the well to prop open the fractures once formed; and capturing and disposing of "flowback" water--the water and chemical mixture used for fracturing, some of which flows back up out of the well. For a detailed description of the fracturing process and its potential environmental effects, see chapter 5 of the New York DEC's preliminary revised Supplemental Generic Environmental Impact Statement for high-volume fracturing. For a report on the chemicals used in fracturing, see this House Committee on Energy and Commerce Minority Staff Report.
3) Fracturing is increasingly common. Industry estimates that more than 90 percent of gas wells in the United States are hydraulically fractured. I am not familiar with the numbers for oil, but certain shales with oil--such as the Bakken Shale--have experienced a fracturing boom. (Shale oils are not to be confused with oil shales, which must be mined to extract oil.) The rise in fracturing for natural gas has been astounding. In 2000, the Texas Railroad Commission issued 273 permits for gas drilling in the Barnett Shale. In 2008, it issued 4,145 permits, and operators received 2,157 Barnett permits in 2010. In 2008, operators drilled 195 wells in the Marcellus Shale in Pennsylvania; in 2010, they drilled 1,386 wells. The U.S. Energy Information Administration has a useful map of all shale plays and of shale gas production, much of which so far has occurred in Arkansas, Louisiana, Michigan, Oklahoma, and Texas. West Virginia's and Pennsylvania's production numbers will continue to rise, and New York will be an important player when the New York Department of Environmental Conservation finalizes the conditions that it will place on high-volume fracturing and begins to approve permits. Shale oil and tights sands formations also typically are fractured and have generated increased interest in states like Colorado, Montana, New Mexico, North Dakota, and Wyoming, among others.
4) Portions of the development process for a fractured well are federally regulated. Operators may not dispose of pollutants into navigable waters without a Clean Water Act NPDES permit, of course. They are potentially liable under the Comprehensive Environmental Response, Compensation and Liability Act for pollution caused by hazardous substances other than oil or gas, and they must maintain material safety data sheets on site for certain chemicals, as required by the Occupational Safety and Health Act and the Emergency Planning and Community Right-to-Know Act. (See this recent post summarizing disclosure and the MSDS requirement.) Operators also enjoy a number of federal exemptions, however, including exemptions of exploration and production (E&P) wastes from subtitle C of the Resources Conservation and Recovery Act (see 42 U.S.C. 6982 (m)(1), 42 U.S.C. 6921(b)(2)(B), and 53 Fed. Reg. 25,446); reporting of annual toxic chemical releases under EPCRA (see 42 U.S.C. 11023(c), which references the document with the Standard Industrial Classification codes to which the reporting requirement applies); and oil and gas pollution from CERCLA liability (42 U.S.C. 9601(14) excludes petroleum and natural gas from the definition of "hazardous substance.") For the fracturing process itself--injecting water and chemicals at high pressure down the well--an operator also is not subject to the Safe Drinking Water Act unless the operator uses diesel fuel. See 42 U.S.C. 1421(d). The EPA currently is developing UIC permitting standards for fracturing with diesel fuel. If the operator disposes of drilling or fracturing wastes in a UIC well, then SDWA applies. Operators also must comply with the Migratory Bird Treaty Act and the Endangered Species Act, and the EPA has proposed new source performance standards for VOCs from fractured and re-fractured wells under the Clean Air Act.
5) State regulations of oil and natural gas extraction--including the fracturing portion of the process--vary. All states have a variety of casing regulations that typically require casing to extend a certain number of feet below underground fresh water (or require, more generally, casing that protects water), and that the cement used to secure the casing be of a certain minimum strength. Many states require that pits used to store drilling and fracturing waste be lined, either with clay or a synthetic liner, and some, such as New York, are moving toward requiring steel tanks for waste storage. States also sometimes regulate the required minimum distance between the edge of the well pad, pits, or the well itself and various natural resources, such as streams and wetlands; others have few of these types of distance restrictions. Many states have begun to update various regulations or to issue less formal directives to address the rise of gas and/or oil development and fracturing. See, for example, West Virginia's focus on water withdrawals; Pennsylvania's updated well water replacement, cementing, and casing requirements (58 P.S. 601.208, 25 Pa. Code 78.51, 25 Pa. Code 78.83, and the Pennsylvania Bulletin); and updated fracturing and drilling regulations in Arkansas (see Rule B-19), Montana, Wyoming (click on the plus symbol next to "Chapter 3: Operational Rules, Drilling Rules" and then "Section 45. Well Stimulation"), and Louisiana and Ohio (for urban areas). See also the Delaware River Basin Commission's proposed regulations of fracturing within the basin, Colorado's comprehensive update of its oil and gas drilling regulations, and the extensive restrictions proposed for high-volume fracturing within New York's preliminary revised Supplemental Generic Environmental Impact Statement, for which the comment period is open through December 12. States increasingly require disclosure of fracturing fluids either to state agencies or the public (or both), as summarized in a recent post, and the EPA issued a letter and subpoena to obtain chemical data for its ongoing fracturing study.
6) States' enforcement capacities and activity in the oil and gas area seem to vary. The Arkansas Public Policy Panel, for example, worries that Arkansas is inadequately inspecting and enforcing violations at hydraulically fractured wells in the Fayetteville Shale. Pennsylvania has substantially increased agency staffing numbers, and the DEP has noted a number of violations--many of which have been summarized by the Pennsylvania Land Trust. For Pennsylvania DEP reporting of Marcellus enforcement, go to this link and scroll down. A 1998 Ground Water Protection Council survey describes state agency responses to complaints about alleged contamination from fracturing.
7) Much of the media attention has focused on the injection of water and chemicals underground for fracturing and potential impacts on aquifers and water wells. Indeed, there are potential gas migration concerns associated with old and new wells, as suggested by a Pennsylvania DEP draft report on stray gas migration and a recent Duke study. The activities at the surface may be more important, though--from trucking chemicals to the site (are hazardous transportation regulations adequate?) to mixing them with water on site (are spill prevention and control plans adequate?), preventing blowouts during drilling and fracturing (blowout prevention regulations vary by state), and storing and disposing of flowback water. Many wastewater treatment plants may not be equipped to handle large quantities of new waste--some of which is slightly radioactive. The wastewater challenges are perhaps best evidenced by Pennsylvania's recent move away from POTW disposal of flowback water. In other states, the space in underground injection control wells is filling up (see West Virginia DEP's concerns, for example), thus requiring a move toward alternative disposal methods, additional drilling and permitting of UIC wells, and an aggressive focus on flowback recycling. For a summary of recent fracturing wastewater issues in Pennsylvania, see this post.
8) Creative lawsuits have emerged. For an intriguing study of regional regulation of fracturing under proposed Delaware River Basin Commission regulations, and New York's argument that these regulations require an environmental impact statement under the National Environmental Policy Act, see this complaint. For some initial court rulings on alleged contamination from fracturing in Pennsylvania, see Fiorentino v. Cabot and Berish v. Southwestern Energy Production Company.
9) The EPA is conducting a study of the "potential impacts of hydraulic fracturing on drinking water and groundwater," with initial results projected to be available by 2012 and a final report in 2014. The Texas Commission on Environmental Quality is conducting air monitoring around fractured gas wells, as is Pennsylvania. The Shale Gas Subcommittee of the Secretary of Energy Advisory Board also has released a draft fracturing report, which includes policy recommendations, as has Pennsylvania's Marcellus Shale Advisory Commission. Finally, the State Review of Oil and Natural Gas Environmental Regulations has completed reviews of state fracturing regulation in Louisiana, Ohio, Oklahoma, and Pennsylvania.
This provides only a small slice of the ever-expanding body of fracturing information. I welcome comments, corrections, and additions.
September 28, 2011
ESA listings announcement
On Monday, the Fish and Wildlife Service announced that it would initiate "status review" for 374 species to determine whether they should be listed as threatened or endangered. All of the species rely upon aquatic habitats, and all live in the southeast. The announcement responds to a petition filed by a coalition of environmental groups, including the Center for Biological Diversity.
The announcement is interesting in many ways, but two lessons seem particularly important. First, the announcement underscores the extent to which aquatic habitats are degraded. We've made huge strides in managing municipal and industrial wastewater, and we've had some localized but still spectacular successes with dam removals, but we've had far less success addressing the impacts of agricultural runoff, urban stormwater, riparian habitat loss, flow alterations, invasive species, and dams and other structural changes. The potential listing of several hundred new species illustrates the consequences of those failures, and the pervasive water management challenges we continue to face.
The announcement also suggests that another piece of western water law may be coming east. For western water law practitioners, there may be no single law more important than the ESA. Water law courses might emphasize the intricacies of prior appropriation doctrine, but with threatened or endangered species inhabiting just about every major western river system and, in many parts of the west, ribbons of critical habitat running up nearly ever stream valley (check out this site and zoom in on the Pacific Northwest), the ESA dominates many water litigators' dockets. The east already has seen previews of that importance, with Florida attempting, so far unsuccessfully, to use the ESA as a lever in its dispute with Georgia and Alabama over the Apalachicola-Chattahoochee-Flint system. With the potential addition of dozens, if not hundreds, of new species, that sort of litigation could become a lot more common.
- Dave Owen
September 27, 2011
When the Decline of an Endangered Species Hits Close to Home
When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.
The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.
So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.
- Blake Hudson
Let's Agree: Texas Wildfires caused by Electrical Issues
I was happy to see that President Obama mentioned climate change in a recent speech, even if it was just a one-liner. As an illustration of how the Republican party is out of touch, he jabbed at Texas Governor Rick Perry with the line that “You’ve got a governor whose state is on fire denying climate change.”
The President’s remark made me wonder just how hot and dry of a summer Texas ended up having. I found two graphics that tell the story well. In the top graphic, a rank of 1 represents the coldest period, and a rank of 117 indicates the warmest period, in the 117-year record between 1895 and 2011. As you see, Texas and several neighboring states had their warmest summers in 117 years. Only the Pacific Northwest states had cooler than normal summers. (Here in San Diego it was sunny and 70, as always.)
In this second graphic, we see that Texas is in the grip of an Exceptional Drought. As apparent from the time-elapsed version available here, the exceptional drought has been ongoing since June.
A few days ago,Texas officials deemed the cause of the state’s devastating Bastrup Blaze that began on Labor Day weekend to be "electrical in nature.” Yes, that seems right. Electricity generation accounts for about 70 percent of the world’s greenhouse gas emissions. Perhaps we can all agree that electrical issues are to blame.
- Lesley McAllister
September 26, 2011
Vermont's Environmental Law Colloquium
Last Friday, Vermont Law School held its second annual environmental scholarship colloquium. It's a great event. Jason Czarnezki, who came up with the idea and took the lead in making it happen, and his colleagues do a wonderful job organizing, hosting, and filling their visitors with lots of really tasty locally-grown food.
For me, one of the most interesting panels was an international/comparative law panel with Alex Wang (Berkeley VAP; formerly NRDC in Beijing), Gabriel Michanek (Uppsala University, Sweden), and Du Ming (Chinese University of Hong Kong). Alex Wang's presentation shed some new light on conventional wisdom about Chinese environmental law implementation and provoked an interesting discussion with Du Ming and with several of the other Chinese environmental lawyers in attendance. For an American with only a very general understanding of Chinese environmental policy, it was a treat to listen to a dialogue among Chinese environmental law experts, all of them kind enough to keep the conversation in English so the rest of the room could understand.
Gabriel Michanek's presentation and paper addressed the tensions between Swedish and European Union water law. The paper is short and accessible, and for students of U.S. water law, it offers an interesting study in contrasts and, to a much larger extent, similarities. In particular, two passages jumped out at me.
First, here's professor Michanek's description of the European Union's Water Framework Directive:
First, WFD recognizes the complexity connected with management of waters. The approach is holistic. It focuses on the status of the entire hydrologic system in a river basin, including its rivers, lakes and sea coast waters. The national territories are divided into water basin districts for which special water district authorities are in charge. Furthermore, it applies to all sorts of activities that may impact the quality of waters, not only different kinds of polluting activities but also water operations, such as constructing dams and other installations in water (e.g. for extracting hydro power), taking out water for irrigation or consumption, drainage of wetlands or other conducts altering water levels or water courses.
To U.S. water law scholars, who spend a lot of time lamenting the absence of holistic approaches to U.S. water resource management, that may sound awfully nice. The EU approach also involves an emphasis on adaptive management, including periodic permit review, which also sounds like an advance on U.S. approaches.
But then we get to the implementation:
The Swedish legal system does not provide for efficient implementation of water quality standards and programmes of measures determined in accordance with the WFD. This is due the construction of Swedish legislation, e.g. the weak legal status of programmes of measures, lack of enforcement mechanisms, none or limited legal effect of environmental quality standards and strong rights for license holders. The failure to implement [also follows] from inadequate management in practice, not least the reluctance among environmental authorities to make use of the legal right to initiate reviews of outdated licenses for polluting activities.
The Swedish implementation deficits promote conservation of established rights to pollute and to exploit waters. This is contrasting to the basic idea behind WFD adaptive planning. ... [I]t is not possible to realise the WFD adaptation if the legal system, like the Swedish, counteracts new requirements.
This is just a sample, and there's much more to the discussion. And while the paper focuses on Sweden, my sense, from side conversations with Professor Michanek, is that Sweden's difficulties are far from unique. Sadly, it seems, some water management challenges may be rather universal.
The full set of drafts from the conference is available here.
September 25, 2011
In Case You Missed It - The Week of September 18 to September 24
* Scientists maintain a renewed focus on groundwater pumping as a contributor to sea level rise.
* 62% of deforested Amazon land ends up as cattle pasture.
* Could experts be wrong about population growth?
* NOAA study finds that controlled burns after BP Oil Spill may have emitted up to nearly five million pounds of black carbon.
* The largest dam removal in U.S. history began last week.