June 2, 2012
Carbon Capture and Sequestration, Revisited
I previously posted about an empirical study that my colleagues and I at the University of Utah law school's Stegner Center for Land, Resources, and the Environment and the Institute for Clean and Secure Energy conducted on carbon capture and sequestration ("CCS"). The point of the study was to try to assess, from the perspective of the CCS industry, what the biggest barriers are to CCS commercialization and, accordingly, what CCS law and policy should look like.
With both coal plants and CCS in the news recently, I thought it might be worth revisiting a few interesting points from that study I did not highlight before. Some of the study findings were most important because they added empirical heft to what many commentators already suggested. For instance, many have suggested that some of the biggest problems with CCS are its cost and potential liability issues, and our study confirmed that those are in fact leading barriers to CCS commercialization.
On the other hand, the study revealed some facts that run counter to conventional CCS wisdom. One of these was that the CCS industry is generally quite confident in its technology. That stands in contrast to many reports, which suggest that big demonstration projects must be built before CCS can be deployed at a broad scale. Of course, AEP has now abandoned -- at least for the time being-- its demonstration project, but the fact that this project was operational at all underscores, at least to a degree, our finding that CCS technology can function on the big stage.
Another interesting finding was that the CCS industry is very interested in a comprehensive, rather than piecemeal, regulatory regime. This jives with industry's general craving for certainty but not necessarily with political calls in the media for a hands-off approach to regulation of industries with environmental impacts. Moreover, the survey findings were rather clear that industry wants not just a comprehensive regulatory regime but one that uses a cooperative federalism model with federal regulatory floors but state implementation to adjust to local conditions. In any case, in a world where many lambast federal regulation at all, it is very clear that the CCS community thinks there is a federal role of some kind to play in governing carbon capture and sequestration.
- Lincoln Davies
May 31, 2012
Keystone XL and Eminent Domain in Texas
Opposition to TransCanada’s Keystone XL pipeline continues to unite parties that, in many other contexts, routinely clash. The latest issue surrounding the pipeline in Texas highlights the pairing of ardent private property rights activists with grass roots environmentalists.
Property rights groups and individual landowners are engaged in multiple lawsuits challenging TransCanada’s authority to condemn property in the Lonestar State for the purpose of installing pipelines to transport dense crude oil diluted with liquid natural gas before receiving the necessary federal permits to do the transporting. (As reported here on last week’s “In Case You Missed It” post, a suit is underway in Nebraska challenging the constitutionality of a state statute allowing pipeline companies similar authority.) Julie Trigg Crawford of Lamar County, Texas is the plaintiff in one such suit—the same Julie Trigg Crawford arrested at a White House demonstration last fall with organizer Bill McKibben and hundreds of others who, many in the name of the environment, sought to convince President Obama to deny TransCanada’s requested State Department approvals.
Among other contentions—including an allegation that by trenching or drilling on the condemned portion of her farm, TransCanada may interfere with federally protected Caddo Indian artifacts—Crawford is challenging TransCanada’s “common carrier” status. Unlike companies with pipelines that are available to carry petroleum for any producer in service to the public, private pipeline companies do not have the ability to condemn property in Texas. Yet, she alleges, pipeline companies need only check the box marked “common carrier” on this form to gain eminent domain authority, and only thereafter can condemnees challenge that authority. Crawford questions whether there will be any points of entry for any Texas petroleum products along the entire length of the Texas portion of TransCanada’s line. A hearing is set for July 9.
In a recent story on Crawford’s plight, former Republican gubernatorial candidate Debra Medina, the current chairwoman of “We Texans”—a group describing itself as a proponent of “limited constitutional government” and “freedom minded-principles”—was recently quoted as lamenting that “there is no one with regulatory power over the pipeline companies’ use of eminent domain.” Meanwhile, in a blog post depicting the scene at a “raucous” rally to support Crawford’s effort, a Natural Resources Defense Council staffer described the participants as “an unusual mix of tea party supporters, independents, Democrats, Republicans and even Occupy Dallas protesters.” I look forward to reading forthcoming scholarship on TransCanada’s condemnatory authority and its propensity to unite these types of rather strange bedfellows.
May 30, 2012
White-Nose Syndrome in Endangered Tennessee Bats
As reported in The Washington Post and Huffington Post, the White-nose syndrome, a devastating disease facing North-American bats, has spread to endangered Tennessee bats. The disease, which can be detected by a fungus on their nose, causes bats to fly outside in winter months when no insects are available. This both poses a survival issue for the bats, and impacts human beings who rely on these bats to eliminate pests. The disease continues its relentless spread despite efforts by the U.S. Fish and Wildlife Service and environmental groups, with some pushing for more cave closures to try to protect uninfected bats.
China Environmental Experiences #4: Wifi Without Potable Water
This is the fourth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, and April’s account of air quality issues in China.)
This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power. China is the world’s fastest-growing major economy—the second largest economy of all nations, the largest exporter, and the second-largest importer in the world. It is a nation with 500 million Internet users, 100 million cars, and the world’s largest standing army. It is the third nation on earth to independently launch a successful manned space mission, with plans to send astronauts to the moon in the coming years. At least in urban areas, China is a thoroughly modern, explosively developing place—with department stores selling Prada, goofy reality TV, and wifi at the local tea house... but you still can’t drink the water.
Visitors to China are carefully warned that the water is not potable and must be boiled thoroughly before consumption. Every hotel room has a small water boiler for this purpose, and the more expensive ones provide a nightly bottle of safe drinking water by the bedside. Water quality problems are traditionally associated with the continuing use of “night soil” (human and animal waste) to fertilize crops—an effective and inexpensive alternative with an inexhaustible supply. Yet the problem continues even as farmers embrace more modern chemical fertilizers (perhaps too heartily, at the alarming expense of soil health), and as other contaminants enter the water supply. While visiting the old city of Lijiang in Yunnan Province, for example, I rose for an early morning walk to find cooks cleaning the carcasses of recently killed animals, intestines and all, directly into the Venice-like canals from which others draw their drinking water.
Shortly before our arrival, we were warned by a vaccination nurse familiar with the most dangerous waterborne diseases to only sponge-bathe our 3-year-old, rather than risk his inadvertent exposure to waterborne parasites through his open eyes or mouth in a shower. Once here, we quickly decided that this level of precaution was unnecessary, at least in urban areas where the municipal water supply receives some level of filtration or disinfection before reaching the tap (especially true in Beijing). Still, we have learned well the rules of life here in China: drink only boiled or bottled water, no ice that can’t be sourced to boiled or bottled water, no fruits or vegetables that haven’t been cooked or peeled, and brush teeth with tap water at your own risk. (Some friends do; others, including me, don’t.) You should also ensure that bottled water is truly factory-sealed, as scandals have occasionally revealed empty bottles refilled with tap water being resold as new.
Without a doubt, adapting to life without potable water was the biggest cultural adjustments for us when we arrived last summer. The first consequence was minor physical dehydration: without easily accessible clean water to drink, we drank less, and soon found ourselves more easily exhausted, ornery, and sick. (Indeed, nothing confirms the critical nature of this life-sustaining resource more effectively than losing the taken-for-granted tap.) Every journey away from our apartment involves water planning, as we take careful stock of how many are traveling, what will be needed, and how best to transport it. I seem to drink more than my Chinese friends, but I still seem to be always thirsty.
And there were other puzzling features of our new world. For example, we struggled to understand at exactly what point our dishes were clean enough to eat off after washing them in tap water. Were the still damp chopsticks safe to use, or the recently-washed cup still bearing that fine sheen? And when dealing with my son’s inevitable scraped knees and elbows, was it better to wash with soap and water to disinfect, or was the water itself a source of potential harm? (For the record, we have decided that dishes must be completely dry to be safe, and that cuts should be washed with soap and water until the dirt is out, but subsequently sterilized with disinfectant whenever possible.)
Chinese culture adapted long ago to the perils of non-potable water. Chinese people boil all their water before drinking it, but it doesn’t seem like a burden, because they prefer to drink their water hot. They range from amused to amazed when foreigners request cold water, which to them is as distasteful as drinking plain hot water is those foreigners. When I invite my students to ask questions of cultural exchange—anything they want to know about American culture, politics, or lifestyle—the most frequent question is always “Why do Americans like to drink cold water? (Yuck!)” Perhaps as a result, there is no groundswell of popular sentiment to “do something” about the water situation. From the perspective of most Chinese, there is no problem with the water. Everything is as it should be.
Yet China is suffering from increasingly serious water pollution problems that can’t just be boiled away. Chemical pollutants entering the water supply from industry and agriculture are getting worse, involving toxins oblivious to disinfectants. The World Health Organization has identified 2221 different pollutants in waters worldwide, and 765 of them in drinking water—but current drinking water standards test for only 35 indicators, and new criteria that will go into effect on July 1st will regulate only 106 pollutants. (Source: Dr. Yu Ming, water pollution researcher at Ocean University of China.) Chinese lawmakers and the Ministry of the Environment are struggling to cope with these problems through the PRC Law to Prevent and Control Water Pollution, but the even greater hurdle for environmental law is that of implementation.
Even where China’s environmental laws are comprehensive, their goals are imperiled by under-enforcement. Illegal discharging is reportedly very common, because there simply aren’t enough agency personnel to monitor them. And even when violations are discovered, they may or may not be prosecuted by the relevant government agency—depending, perhaps, on the economic importance of the violators, or their political influence. When the government fails to act, it can be hard for citizens and NGOs to take up the slack, because most Chinese courts don’t recognize standing for public-interest citizen suits. And even if traditional standing were established by a directly injured party, the court may or may not decide to hear the case (for my money, one of the most surprising features of the Chinese legal system). For these reasons and others, enforcement is usually seen as the major weakness in China’s environmental law regime. Perhaps China’s new experimentation with a handful of specialty environmental courts will help redress these important problems.
In the meanwhile, water quality problems intersect with and exacerbate other environmental problems. For example, one unfortunate consequence of unreliable tap water is the resulting prevalence of disposables: single-use bottled water, disposable plates and bowls, even the single-use toothbrushes that hotels at every level routinely provide. I spent the last year spearheading a university sustainability initiative that sought personal pledges to avoid bottled water and other disposables as much as possible, so it was particularly jarring for me to adjust to this new norm—where we are happy to eat at a restaurant that provides disposable bowls, plates, and chopsticks, because we know they won’t make us sick that evening. (And I was happy to note that, at least at our favorite local restaurant, the plasticware is marked as biodegradable.) By contrast, at restaurants that provide the reusables I normally seek out at home, we nervously try to sterilize them with hot tea before using them, because they have likely been rinsed in the too-thoroughly recycled dirty dishwater that compounds the problems already coming out of the tap.
So, after religiously toting my reusable aluminum bottle to my every American class last year, I now carry plastic bottles of water everywhere. And though I reuse the small bottles as long as possible rather than discarding them after a single use, they are usually filled with water that I get at home from the water-cooler bottle that many Chinese families use. On any given day, you can spot a handful of strong men riding motor-scooters with an improbably number of these strapped to the back, exchanging filled ones for empties at private homes and businesses. I’m happy to report that at least these large bottles are faithfully recycled. But I’m unhappy to say that smaller plastic bottles litter the streets, parks, mountains, landfills, beaches, and accordingly, rivers and oceans.
Neither is the important relationship between water quality and water quantity lost on China, which has one of the lowest per capita rates of fresh water in the world. Northern China is arid and especially lacking sufficient water, marked by some of the world’s great deserts, like the Gobi and the Taklimakan. But it rains plentifully in the south and along much of the coasts. As a result, China has erected the most massive water-delivery infrastructure in world history to shift enormous quantities from south to north, a project already underway for fifty years and scheduled for completion in another forty. Linking China’s four main rivers together in a network of diversions, it will eventually move almost 50 billion cubic meters of water annually. Although the project has already caused its fair share of negative environmental consequences and human displacement, most of the Chinese I have spoken to—even those from regions in which water is taken—are comfortable with the need for extreme inter-basin transfers to support northern population centers like Beijing. And they are proud of the ingenuity and engineering that underwites this aspect of "man-made China."
Like nearly everything else in China, its history of mind-boggling human interventions with water began thousands of years ago. I had the opportunity to explore a classic example last week while visiting the Turpan Depression near Urumqi in Xinjiang. Turpan is the lowest and hottest place in China, at 150 meters below sea level and in the middle of China’s most arid province. And yet there in the desert was a blooming oasis of vineyards, agriculture, and Uighur community. How was it possible? It is because 2,000 years earlier, the people who still live there dug 5,272 kilometers of underground canals with 172,367 vertical well shafts to collect and redistribute the groundwater accumulating from melting snow on the nearby mountains. At its height, the “Turpan Karez” channeled 858 million cubic meters of water into 1,784 lines to distribute it to all parts of the region. (You can’t even imagine what this looks like—best to see it, so try this aerial photo and this diagram). It is a staggering feat of civilization—a celebration of creativity, environmentally sustainable terrascaping, and the human ability to thrive against all odds.
Modern-day Urumqi, the capital city of Xinjiang, relies on similarly creative water technology. During my visit, I saw acres of recently planted, spindly young trees in the desert outskirts of the city, lined up like toothpicks piercing the mostly barren earth. I would often ask my hosts, “How will these trees take root? With what water?”, and I was always told, “Oh, there is enough water here in Urumqi.” I knew that the trees had been planted for environmentally sound reasons—to help stabilize the soil, moderate ground temperature, and trap airborne dust—but I still couldn’t understand how they would survive in such arid ground, only occasionally studded with dwarflike sagebrush scrub. In my broken Chinese, I would persist, “but if there were really enough water to grow trees, wouldn’t there already be trees here?” And they would quietly insist, “no, no—there will be enough water,” though I could never understand from them why.
Then on my last day, I visited a popular public park in the middle of the city, where the temperature was ten degrees cooler thanks to the canopy of the many mature trees that ringed its central hill and the banks of the creek flowing around it. I followed my idle curiosity to the crown of the hill, where I was astonished to find a complex terrascaping system for just this park. There was a small, swimming-pool like reservoir at the top, supplied by a large pipe snaking up the hill (it wasn’t clear to me from where), and a network of canals extending radially outward down the hill in all directions. Indeed, the park’s oasis was created in the same manner as the Turpan Karez: decades earlier, the now lush trees had been planted in rings around the hill, and the reservoir fed them a steady supply of water through the canals at their base. I was awed by the success of the project, and the clear joy it gave the city residents who collected there en masse to enjoy its peace and beauty. And I suddenly understood what mechanisms were likely helping those new trees take root in the desert surrounding the city.
With such scarcity at hand, China is trying harder and harder to avoid squandering its precious water resources with regulatory efforts targeting both quantity and quality. Wherever there are flush-toilets, they are almost always low-flush toilets, with separate levers for the two types of waste they will encounter (one of which needs a stronger flush than the other). Solar-powered water heaters effectively reduce consumption by limiting hot water to what can be stored on the roof at any given time (although the more expensive ones have a gas or electric backup). Greater efforts are being made to reduce use and recycle water wherever possible. Hopefully, China will find a way to enact and enforce more effective water pollution laws to avoid further industrial and agricultural degradation of its water resources.
But for what it’s worth, I’m told there are no great plans on the horizon to achieve potability from the tap, because potability is just not a cultural priority in China. So the mantra will continue: boiled or bottled, cooked or peeled, rinse at your own risk…
May 29, 2012
India's Petrol Price Hike: How Can Law Respond to Energy Intensive Development?
Deregulation of oil is considered one strategy in the quiver of climate and energy diversification efforts. When the Government of India (GOI) deregulated most petroleum commodities in June 2010, it seemed to be headed in the right direction in strengthening its energy security and emissions reduction goals (even though the GOI presented the move as a strategy to stem losses for oil companies). Nearly two years since the deregulation, India is witnessing one of the sharpest increases in fuel prices--a whopping 11%. The result has been long lines for fuel, fuel unavailability in some places , and the rumblings of discontent in the coalition government. For people on the streets, it is simply a question of affordability.
Interestingly, though, the fuel price has not been driven by the deregulation. It is reportedly driven by a significant fall in the value of the Indian rupee against the U.S. dollar. The Minister for Finance, Pranab Mukherjee, has reportedly announced that the government cannot interfere with a deregulated commodity. Needless to say, opposition parties have announced a strike on May 31. The problem may get resolved temporarily; the government may infuse some relief. It may not.
The experience, however, can provide valuable insights into the challenges of adopting meaningful energy law and policy. If the government is able to sustain its deregulation policy, then the fuel prices will not go down. In such a scenario, energy diversification may receive a boost. In the best case scenario, we are looking at increased solar, wind, and other renewable energy sources. Let us not forget, however, that the government continues to subsidize petroleum products for domestic use. Hence, renewable energy may not receive a tremendous impetus, unless these sources are used as subsititues to fuel in question (petrol or gas for vehicles). If they are to receive a boost, the GOI needs to promote electrical vehicles. We are looking at vehicles that have a price tag of about US $20,000 here in the United States. For most Indians that would be unaffordable. Perhaps electric two wheelers will cost less. Even if electric vehicles were affordable, the question is whether they can all be fed by renewable energy power or whether they will require that nuclear power plant, after all.
Alternatively, people may simply stop relying on private vehicles and instead turn to public transportation. If the GOI can raise to the challenge of creating a viable public transportation system, this short term price problem may yield dividends in the long run. At the same time, this would mean a much smaller market for automobile companies. If the huge discounts offered by car companies is any indication, it is unlikely that they will leave the field for public transportation without a fight. After all, we are still talking about a major economic player.
The other scenario is that the government will intervene and stabilize or even reduce petrol prices. In such a case, the impetus for changing behavior is compromised. It will send a signal that only small incremental changes to petroleum price is possible, especially absent any global increases in oil prices. Then, goals for reducing emissions and for energy diversification have to be scaled back.
What can these lessons tell us? Despite rich legal dialogue on the matter, the question of energy comes down to question of changing behavior. People cannot be simply "nudged" to adapt to changing realities beyond a point. What future then do efforts to reduce emissions and diversify energy stand? Even if people do wean away from petroleum, can we all sustain on renewable energy alone or will we simply have to accept the a "nuclear" reality. What India's fuel price crisis can demonstrate is that carbon intensity alone is not an issue. The energy intensive model adopted by governments calls for serious introspection. Particularly, what will be true cost of energy and who will pay it. I am going to shut down my computer and disconnect the power cord, while I go back to ponder how the age old institution of law can respond to ever-increasing energy reliance. As an aside, Apple may have overtaken ExxonMobil as the most valuable company. But, it ain't worth its weight in Apps if it cannot be charged.
May 28, 2012
What "The Matrix" Tells us About Resiliency
About a year ago I posted about one of my favorite cinematic statements about natural resources, from the movie "The Matrix" (see Agent Smith on Humans as a Virus). Well, while teaching recently (via my preferred form of metaphorical pedagogy) I was struck by another portion of the trilogy, the end of the "The Matrix: Revolutions." In the film Agent Smith has replicated himself exponentially within the matrix (sound familiar?), threatening to completely overrun not only the matrix (a software system) but also to infiltrate the systems of actual machines back in the real world - potentially leading to their ultimate destruction. Neo perceives this inevitability, and makes a compelling offer to the real world machines: that he will combat Agent Smith in the matrix if they will in turn halt the impending extermination of humans on earth. While Neo, whose physical body is jacked in to the head machine in the real world, battles a seemingly infinite number of Agent Smiths within the matrix, the futility of his efforts becomes apparent. Then, however, the battle takes an intriguing turn, as Neo purposefully allows Agent Smith to turn him, via replication, into what seems like yet another Agent Smith. What has in fact occurred, however, is that Neo and Agent Smith have become integrated within the matrix, allowing the head machine back in the real world to electrocute real-world-Neo's physical body, thus destroying Agent Smith within the matrix.
My class had been discussing the interconnectedness of ecosystems - how a tree cut along a stream bank in Alabama can have an effect on global carbon sequestration capabilities (or rather the aggregated cutting of such trees); how genetic diversity has decreased with regard to crops like, for example, bananas (one species of banana - cavendish - makes up almost the entire worldwide trade in bananas - what happens if an Agent Smith fungus comes along that likes cavendish bananas?); and how our food systems are so integrated with national and global supply chains (if another Katrina hits New Orleans, Walmart and other supermarkets have food for about, what, 2-3 days? But a resilient community has a system of gardens and food producing systems that can alleviate delays in feeding a population). In each case, the interconnectedness of the system or resource puts the entire system at risk if the right Agent Smith comes along to threaten it. Rob Hopkins discusses this below, detailing our need to transition to more resilient systems - ones that are not completely at risk due to a single global crisis, plague, or disaster. While humans could certainly use the dose of humility that Agent Smith provides regarding their basic nature (that of behaving like a virus), his model of governance of a resource (unchecked replication within the resource system in an attempt to control all aspects of the system) leaves a lot to be desired. Indeed, in "Revolutions" Agent Smith proved to be no different than the humans he critically psychoanalyzed in "The Matrix," and in fact it was the humans whose sacrifice and quick thinking saved the earth - I can only hope that will be the case for us back here in the real world.
- Blake Hudson
May 27, 2012
In Case You Missed It: The Week of May 20-26
* Republican-led Ohio legislature passes bill establishing energy fracking rules.
* Climate scientists say warming could exceed the dangerous 3.5 C threshold.
* Indian state legalizes the shooting of tiger poachers on sight.
* China files a complaint with the WTO against five U.S. states regarding solar subsidies.
* The battle over labeling genetically modified food in the U.S. has heated up over the last year.
* The Brazilian president has vetoed portions of a controversial bill that aims to open up more of the Amazon to deforestation.
* Nebraskan citizens fight back over Keystone Pipeline eminent domain.
* Does algae-derived biofuel have promise?