December 3, 2011
In Case You Missed It - The Week of November 27-December 3
* The New York Times reported that the International Union of Pure and Applied Chemistry has proposed names for two new elements (elements 114 and 116) on the periodic table of elements, suggesting flerovium and livermorium.
* At least 340,000 electricity customers lost power in Southern California windstorms, as reported by the LA Times.
* The New Yorker reported on hydraulic fracturing and Americans' obsession with fossil fuels, concluding, "The way things now stand, there’s nothing to prevent us from getting wasted mountains [from coal] and polluted drinking water, and a ruined climate to boot."
* The EPA released proposed new rules for criteria and toxic pollutants from industrial boilers and incinerators, as reported by Greenwire.
* LaFarge, North America Inc., "one of the largest suppliers of construction materials in the United States and Canada" according to the EPA, agreed to pay a $740,000 penalty and implement two supplemental environmental projects for unpermitted discharges of stormwater in violation of the Clean Water Act.
* St. Louis, Missouri won the EPA's National Award for Smart Growth Achievement -- Overall Excellence for its revitalization of the "Old North" historic neighborhood.
* A new, comprehensive Tribal Consultation Policy for the Department of the Interior was announced. Consultation issues have been the subject of recent lawsuits, such as Quechan Tribe v. U.S. Department of the Interior (S.D. Cal. 2010), in which the tribe successfully argued that the DOI had not adequately consulted with it under the National Historic Preservation Act regarding destruction of cultural resources by a planned solar farm.
* The Department of the Interior hosted an Alaska science workshop "to discuss how to facilitate the delivery of relevant scientific information to officials responsible for making decisions related to energy development in Alaska."
December 2, 2011
As a "Backyard" Industry Fuels an Economic Transition, Who's Watching?
The Wall Street Journal reported this week that for the first time in sixty-two years, America may be a net exporter of fossil fuels. Much of this astounding transition--although partly resulting from our economic woes, which reduce our own fuel consumption--has been driven by drilling that occurs, almost literally, in individuals' backyards. Energy companies approach mineral owners, enter into leases, and begin drilling. (Note, though, that many states require minimum setbacks between wells and dwellings and that many wells are still in rural areas.) The oil and gas industry always has operated this way, but its uniqueness becomes increasingly apparent as technologies like hydraulic fracturing have enabled recent fossil fuel booms. As more wells emerge, from the Fort Worth suburbs to Pennsylvania farms, some of the old English nuisance cases come to mind. Brick kilns in the middle of residential neighborhoods, such as the kiln built by a defendant constructing his house (Bamford v. Turnley (1862)), seem to be outdated anecdotes. But oil and gas extraction is, inherently, a backyard industrial activity. Although it is conducted by sophisticated companies, the industry is comprised of millions of industrial operations--some tiny, some larger (think BP)--and this leads to unique environmental and social challenges.
A front-page article in The New York Times today reminds us of one of these complications: the lease. The Times has conducted a survey of surprising magnitude, which addresses more than 111,000 oil and gas leases from Texas, Pennsylvania, and a few other states. The Times notes that this is, still, a small sample, as there are millions of leases in total. From the 111,000+ leases reviewed, it concludes that "[f]ewer than half the leases require companies to compensate landowners for water contamination after drilling begins," for example, and that "[i]n the leases, drilling companies rarely describe to landowners the potential environmental and other risks" of production. Electronic versions of the leases are available here. The article then suggests, based on several interviews with mineral owners, that many people may not know exactly what they're getting into when signing an oil or gas lease. The article concedes that state law does protect lessors (and surface owners) against some potential risks. Pennsylvania, for example, has a rebuttable presumption that water well contamination within 1,000 feet of a wellhead within six months of drilling or completing the well is caused by an oil or gas operator and requires the operator to replace contaminated supplies. As the Times points out, though, replacement requirements may not cover some costs, such as heating the water tank to prevent it from freezing. The Times also reports that at least one lessor was surprised to learn that oil and gas operators could simply fill in surface pits that had contained drilling wastes and then seed over them. (State regulations for storage and disposal of drilling wastes vary significantly. Disposal of some wastes may occur on site through burial, but states often require soil testing first, and certain wastes must be transported off site. Regulations for site remediation also vary, and some states, as the Times briefly notes, have surface damages acts that give surface owners more control over drilling activities and their location and effects. The common law, too, also has some protections for surface owners.)
Beyond protections for lessors and surface owners in both leases and law, this "backyard" industrial boom also raises the question of externalities. Some lease provisions that protect the lessor may benefit neighbors, too. A requirement that the surface be restored after drilling might protect neighbors against unsightly views, for example. But a number of externalities--from air pollution from drilling and fracturing to potential off-site migration of surface chemical spills--may not be controlled within the lease, causing many to question whether federal and state regulations have picked up the slack. As I've mentioned in earlier posts, the EPA is evaluating potential water quality impacts of fracturing (particularly in shales), and New York has conducted an extensive environmental review to identify restrictive conditions that will be placed on drilling and fracturing. The Ground Water Protection Council--an association of state regulators--has argued that regulation of drilling and fracturing is adequate, while environmental groups and others support more controls. (The GWPC, although defending existing state regulation, has contributed to new voluntary initiatives, such as FracFocus.org, which discloses chemicals used at well sites.)
Much of the debate can be reduced to one simple fact: We have a growing number of oil and gas wells, in some cases in areas that have not previously experienced heavy drilling. As with any other activity, the more drilling activity there is, the more potential for effects--both for mineral and landowners and the public at large. This may not mean that we should immediately jump to more regulation, necessarily, but we should certainly reconsider the adequacy of regulation and the areas in which it needs rapid modification. A useful analogy might be found in other activities, which, individually considered, may have low risks. Take driving, for example. With one car or truck on the road, we might not be very concerned; with 254 million, we move toward increasingly detailed controls on safety and emissions.
December 1, 2011
Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)
Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co., (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).
No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)
Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.
First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.
PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.
Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.
As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?
From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.
Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.
November 30, 2011
Road Salt and the Law
As winter arrives, and snow begins falling across much of the country, a small army of workers will spread across America’s roads, parking lots, and walkways, dumping hundreds of thousands of tons of salt. That salt will help keep people safe, but at a steep cost. Salt stresses roadside vegetation, increases roadkills, and contaminates aquifers and surface waterways. Beyond environmental impacts, salt also damages vehicles, and all of those tons of salt cost a lot of money.
In Maine, these concerns recently spurred the creation of a group called the salt management roundtable. The group is a loosely-defined set of municipal stormwater managers, public works directors, environmental consultants, regulators, and academics, all interested in finding ways to address the environmental and non-environmental consequences of salt. We’ve met several times, with a mix of structured discussions and presentations, and through those meetings I’ve all learned some interesting things. Among the highlights:
- However you measure it, salt application is a big and growing issue, even if it’s not an issue we usually hear much about. The amount of salt applied is truly enormous (see here). It all stays in the environment, and the impacts are extensive. Here in Maine, researchers have found that salt concentrations in aquifers across much of the state are steadily rising, with average concentrations eventually likely to exceed EPA water quality standards. That’s a huge problem anywhere that relies on groundwater as a drinking water source. The surface water impacts may be similarly pervasive. A UMaine Ph.D. student doing statewide water sampling recently found that impaired urban streams in Maine nearly always have elevated salt concentrations. That doesn’t mean that chloride is the cause of impairment—there are plenty of impaired urban streams in areas with less salt use—but it is at least consistent with a fear, often expressed by urban stormwater managers, that restoring urban watersheds will not be possible unless salt impacts are somehow addressed.
- There isn’t an easy answer. Simply abandoning salt would be incompatible with current public expectations for mobility and safety. Changing those expectations is theoretically possible but likely to be rather difficult. And while less toxic alternative de-icers do exist, they’re expensive. We have opportunities to reduce use, and technologies may change. But eliminating use is a very far-fetched possibility.
- Some of most intense salt users are private landowners. Municipalities apply the most salt because they are responsible for most of the paved area. But because of the financial incentives and economies of scale associated with high-volume use, municipalities can invest in sophisticated technology designed to allow strategic applications. The municipal salt trucks you see on the road probably have computer systems that help operators continually adjust to road and weather conditions. Private landowners, by contrast, have much less incentive to use those systems, and therefore often use much more salt per unit of area. If there are low-hanging fruit to be plucked, these private landowners are a particularly good opportunity.
- Law affects salt application, and not just because water quality regulation may limit salt use. Contracts also appear to make a big difference in the amount of salt applied. A contractor paid a flat sum for salt application has very different incentives from one paid for materials used. And tort law is important. Both municipal and private landowners have repeatedly expressed fears that if they use less salt, they’ll find themselves on the wrong side of a jury verdict. A recent white paper, which one of my students did most of the work of preparing, concludes that those fears, though not baseless, are probably a little overstated. But the stormwater managers I talk to still think those fears are real impediments to reductions in salt use.
Where will the group’s work go from here? I’m not sure. So far, we’ve learned from each other, gained a clearer sense of the challenge, and identified a few opportunities. But finding effective solutions is going to take much more work.
All of that leads to a pitch. I know this blog has some student readers, and some of you may be using this blog to try to identify topics for law journal comments or independent writing projects. If you’re looking to write about an important but relatively understudied environmental issue, the law of salt may provide some potentially good option.
- Dave Owen
November 29, 2011
Are you a Climate Change Technological Optimist?
A technological optimist thinks that climate change will be solved through technology development and that human societies will continue to thrive and grow wealthier in the course of a transformation away from fossil fuels. Humans will innovate their way to a brighter future as technologies emerge to support new electric power systems, agricultural systems, modes of transportation, and urban design. The technological optimist believes, in short, that technology will save us.
A technological pessimist emphasizes the risks and costs of technological change. In the pessimist’s view, climate change is a complex social problem for which there will be no easy technological fix. Rather, climate change will lead to significant societal disruption, and an appropriate response is to return to a simpler, less technologically-dependent existence. For the technological pessimist, yesterday’s technological solution is today’s social problem.
I think it is fair to say that the media tends to endorse a view of technological optimism. And I feel somewhat hopeful when I read stories about skyscrapers that inhale carbon dioxide, super-efficient rotating solar panels, and "smart" windows that switch to dark mode. Yet I also perceive truth in technologically pessimistic proclamations like the People's Agreement adopted at the April 2010 World People’s Conference on Climate Change and the Rights of Mother Earth in Cochabomba.
Where do you fit? You may see yourself in both, but does one or the other view predominate for you? At times during my climate change class this past semester, I found myself feeling like quite the pessimist in comparison with my students.
- Lesley McAllister
The Urgency of Now--Why We Need to Stop Fighting about Climate Change and Get Serious about Energy Transition
The United Nations Framework Convention Convention on Climate Change has begun its annual conference of the parties in Durban. From the start, the news is depressing, and as Lesley McAlister noted in her blog, has a bit of a deja vu quality, and not in a good way. The Chief Economist of the International Energy Agency, Fatih Birol, indicated that we're on track for 6 degrees of warming by 2100 if we don't change our energy use patterns. Meanwhile, Canada, which is failing to meet its Kyoto Protocol commitments, has announced it won't sign on for another commitment period. While there are many nuanced negotations going on regarding many important issues, which small groups of people fully understand, the progress on some of these topics since last year's Cancun negotations does not address the fundamental problem: we are nowhere any kind of big picture solution to this problem. This is why the soon-to-be-released casebook I'm writing with Lesley McAlister ends with major climate change and geoengineering as it's two primary scenarios, and asks our students to try to get us to an alternative future.
I started a talk a week ago saying that I wish I were a climate skeptic and having a good friend say that she doesn't understand how we can keep going working on this incredibly depressing issue. It's hard to know what to do when consensus science says that we're creating a catastrophic problem and when there's just not political will to act fast enough. The reason I have projects on both suburbs and geoengineering emerges from the schizophrenia that this moment brings. I'm trying to come up with creative ways to impact the big picture as top down approaches fail (known by academics as pluralist or polycentric governance models) while trying to make sure we have legal mechanisms thought through as we begin to approach geoengineering more seriously. And for the record, I have very grave doubts that, even with our best scientists thinking it through, geoengineering (technological efforts to reverse warming effects or get carbon out of the system) is likely to go well. And all this is under the Obama Administration--many leading Republican candidates want to eliminate the meager progress this country has made and one of them may win if our economy doesn't improve more soon.
So, assuming there are plenty of people out there who are not radical climate skeptics but simply feel overwhelmed by this issue, what can you personally do to be constructive as people from around the world try to be constructive in Durban? First, we need to push as fast as we can in our local communities--and many of us live in small cities where we can make a difference (the central cities in the Twin Cities, for example, represent just a quarter of the metro's population)--to get our governments and people to start at least making the easy choices. There's still lots of low hanging fruit. By transitioning to cleaner energy through energy efficiency measures and increasing renewables, cities can often save themselves a lot of money. And green energy is not necessarily more expensive, by the way. One of the most hopeful moments for me this semester was when my students and I went to visit the regional transmission organization here and heard a system operator say that they try to put as much wind onto the system as possible, not because its environmentally better, but because it's the cheapest source of energy in the system.
Second, we need to try to change the discourse and we can all make a difference in this. It's time to stop wasting enormous amounts of energy fighting, and work together. As is not uncommon in times of great economic distress, we have two populist movements in this country, the Tea Party and Occupy Wall Street. Although very different politically, they both represent deep dissatisfaction with the status quo in this country. Meanwhile, we have an often vitriolic political discourse, especially as we march towards another presidential election, that leads to people wasting enormous time and energy fighting rather than working together constructively. We can each individually change this by reaching across the aisle and partnering. Energy transition, which really needs to happen, is not a Democratic or a Republican issue. Many of the suburban sustainability efforts in the Twin Cities metro that I've looked at are taking place in communities that lean Republican. Whatever you think of climate change, helping your community transition to cheaper, cleaner energy makes sense. These measures are not enough as our representatives sit in Durban likely failing to address climate change adequately, but they're something we can do right now, where we live, and make a difference.
November 27, 2011
In Case You Missed It: Week of November 20-26
* Dan Farber posted a timely analysis on Newt Gingrich and the Environment.
* Not surprisingly but importantly, a new study shows that people who believe scientists disagree about global warming tend to be less certain that global warming is happening and less supportive of climate policy.
* The Super Committee failed to come to an agreement on how to cut the deficit, and Climate Progress discusses how this relates to oil subsidies and energy policy.
* Noted environmental historian, Douglas Brinkley, testified before the U.S. House Natural Resources Committee on Congress's latest attempt to open the Arctic National Wildlife Refuge (ANWR) to oil exploration and drilling and faced tough questioning from the Committee and bullying from Senator Don Young.
* The Hill posted a useful summary of the Solyndra controversy.