Environmental Law Prof Blog

Getting to Commercial-Scale Carbon Capture and Sequestration

Legal scholarship of late has highlighted the need not just for climate mitigation but also for climate adaptation.  One energy option that falls somewhere in between these two ends of the spectrum is carbon capture and sequestration ("CCS"): removing carbon dioxide streams from commercial operations, especially coal-fired power plant emissions, and then transporting it to geologic formations where it can be stored long-term underground.

Despite the fact that the oil and gas industry has used this process for years in enhanced oil reocvery operations, commercial-scale CCS has yet to get off the ground as a climate change solution.  Numerous recent scholarly articles have addressed legal concerns related to carbon capture and sequestration, including, to name just a few, excellent pieces by Victor Flatt and by Alex Klass and Elizabeth Wilson. 

While many studies have suggested barriers to using CCS on a broad-scale basis -- including its high cost compared to traditional coal combustion, possible legal liability for underground storage gone awry, and difficulties in building the massive pipeline infrastructure that would be needed for commercial CCS -- no study to date has methodically addressed which of these barriers is greatest.  The answer to that question is important, because it implicates what CCS regulation should look like.

One study that I have been working on with colleagues from the University of Utah's Institute for Clean and Secure Energy takes up this question (and several others).  While we are still in the process of finalizing the report, here is a partial preview.

The study includes a survey of about 230 industry, professional, regulatory, and academic representatives involved in CCS.  One of the survey questions asked the participants to rate, on a 1 to 5 scale, a number of possible barriers to CCS commercialization.  A score of 1 means that the barrier is "no obstacle" to CCS commercialization, a 2 is a "minor" barrier, a 3 is a "measurable" barrier, 4 a "significant" barrier, and 5 a "critical barrier.

Four obstacles to CCS commercialization ranked highest in the survey: cost, lack of a carbon price or other financial incentive for using CCS, liability, and lack of comprehensive CCS regulation.

In one respect, this ranking is unsurprising.  Cost, liability, and the lack of climate change legislation have been widely acknowledged as problematic for the roll-out of CCS, so one might expect them to top the list.  Perhaps more interesting, however, is how highly the lack of CCS regulation rates.  What this means is that before CCS is likely to get off the ground, a predictable, comprehensive regulatory regime will need to be put in place.

The survey has more to say on that front.  Look for the full report later this summer.

-Lincoln Davies

And Now for Some Good News?

Earlier this week, it was hard to tell whether the cries coming from southern California were of joy or despair.  San Diego Gas & Electric is in the process of building a massive transmission line from the Imperial Valley to its load center in San Diego.  Increasingly, it looks like SDG&E will be able to fend off the numerous legal challenges to the project and bring scores of renewable electrons home.

The Sunrise Powerlink project is, by any measure, impressive.  According to SDG&E, the line will run nearly 120 miles.  It will cost almost $2 billion to build.  It will create hundreds of construction jobs and "thousands" of jobs in renewable energy.  It should save consumers $100 million annually.  It will give SDG&E access to numerous renewables projects.  And it will have a capacity of 1,000 MW, enough to power "650,000 homes."

All this sounds like a good thing.  One would think so.  It is well established that one of the biggest impediments to renewables is the need for more transmission lines -- lots of them in many places.  On that score, the Sunrise Powerlink project should be most welcome news.  SDG&E repeatedly has pointed out that this project can only help the state achieve its renewable portfolio mandate of 33% renewable electricity by 2020.

Still, the fact that the Sunrise project has been plagued by litigation highlights the contentious natureof completing any large energy developmenttoday.  NIMBYism reigns not only when developments harm the environment but also when they help.  Companies building environmentally beneficial projects know well by now that environmentalism is not a proper noun, a capitalized word representing a unified front.  It's very much lower-cased; disaggregated, splintered, fractured, multifarious, subject to hijacking.

This, then, underscores three important points that are becoming more and more obvious as we, it increasingly seems, begin a transition to a more sustainable energy infrastructure.  First, the process will be slow.  Sunrise is all about renewables but still facesopposition.  What will be the fate of more mixed projects?  Second, if we are to move to renewables, legislation facilitating transmission build-outs will be extremely helpful, if not necessary.  Utilities clearly prefer big, centrally planned projects.  Without transmission, they can't go forward.  Third, a united front will be necessary.  Climate change certainly has been a galvanizing force for environmentalists over the last decade, and more.  If they want meaningful progress, environmentalists cannot say no to everything.  Some things have to be yes, and the yes needs to be resounding.  That especially goes for projects that have both environmental and economic benefits.

Then there will be some good news indeed.

-Lincoln Davies

Forget the Light Bulbs

A recurrent axiom in energy law today is that "efficiency is our cheapest resource."  It's true.  Every day, we forgo massive amounts of monetary and environmental savings we could achieve without ever building a new wind farm or replacing gasoline with natural gas, simply because our energy systems are not as efficient as they could -- or should -- be.  The beautiful thing about efficiency, moreover, is that it is generally non-controversial.  It's cheap.  It's green.  So everyone loves it.

Usually.

Earlier this year, the kerfuffle in Congress over light bulb regulation drew into question the political legs of the efficiency argument.  A portion of the 2007 energy bill signed by President George W. Bush -- and supported by industry -- required the phase-out of lower-efficiency incandescent light bulbs.  But at least some members of this Congress, newly invigorated by the anti-regulation flare of Tea Party Republicans, took issue with this measure, using it to highlight their philosophical aims.

Now, however, at least two bills pending in Congress pack enough efficiency punchto make one forget there ever was a light bulb debate.

The first, S. 398 or the Implementation of National Consensus Appliance Agreements Act of 2011 would update existing, and institute first-time, efficiency standards for numerous appliances and devices, including refrigerators, freezers, dishwashers, clothes washers and dryers, furnaces and A/C units, portable electric spas, and drinking water dispensers.  Supported by a broad coalition of environmental groups and appliance manufacturers, the bill would conserve enough energy to fuel "4.6 million homes" save consumers a net "$43 billion by 2030," according to an analysis by the Alliance to Save Energy.

The second, S. 1000 or the Energy Savings and Industrial Competitiveness Act of 2011, would address efficiency in further ways.  In addition to establishing efficiency standards for appliances, it would strengthen national model building codes, encourage private investment in residential and commercial efficiency upgrades through DOE loan guarantees, create a "SupplySTAR" program to enhance the efficiency of companies' supply chains, and require the nation's largest energy consumer, the federal government, to institute efficiency and energy-saving measures.  Industry also is getting behind this bill.  Eric Spiegel, Siemens Corp.'s president and CEO, said this:  "Federal, state and local budgets are as tight as they have ever been, but energy efficient products and solutions that will be advanced through this important piece of legislation can help government, industry and consumers save energy and millions of dollars, create jobs and spur competitiveness."

For those who are endeared by measures that both save money and our nation's environmental future, these bills should come as welcome news.

And if that's not enough, take a walk down the aisles of your local hardware store.  You might be pleased to find some of the light bulbs that are now for sale.

-Lincoln Davies

What About Climategate?

When discussing climate change with students, it is quite common to get the question, "What about climategate?"  Even if students do not ask about it, given the media and political attention paid to the episode referred to as climategate, it is something that is probably going through many students' minds.  In this post, I will discuss how I deal with this question. 

To start with, it is important to note that reality of climategate and the perceptions of it, while certainly different, are both important in the policy debates on climate change.  Of course, in political discourse what climategate has come to represent is an assertion that climate change science is nothing more than a fraud, a hoax, a conspiracy, and even the scandal of a generation.  Some climate skeptics have gone to great pains to detail how climategate shattered the notion that there is a scientific consensus that the globe is warming due to anthropogenic greenhouse gas emissions.  

So, what is the reality of climategate?  For those unfamiliar with the story, in November of 2009, a computer hacker was able to access and copy thousands of emails from the University of East Anglia Climate Research Unit's server.  (The Climate Research Unit is the academic home of a number of scientists involved in some important aspects of climate change science, including helping to draft reports for the Intergovernmental Panel on Climate Change.)  Climate change skeptics pounced on the emails and made an aggressive press in the media, asserting that the emails' content effectively debunked climate change science as science.  In this efforts, a number of emails were held out as smoking guns.

More than the information contained in the emails, the most damaging thing about this episode to climate change science was the press's response to this so-called scandal and the inability of the scientific community to respond effectively.  To put it simply, on one hand, many in the press retold and reinforced the story put out by climate skeptics (see this story in the Wall Street Journal example as an example.)  On the other hand, those involved with the so-called scandal were unable to quickly answer the questions posed to them in a way that effectively defended their scientific work.  (A number of media outlets have have made this point, see The Economist an an example.)  Those inclined to persist in rejecting the findings of climate science or even not inclined to act on these findings have continued to point to climategate (see this report from a number of U.S. Senators as an example).  

While many in the media immediately got out the story, time has passed and allowed others to fully investigate the claims of climate skeptics.  In large part, these reviews have come to the conclusion that some of the scientists involved with important climate change research at the University of East Anglia were:

• Disposed to dislike some climate skeptics and their work.
• Not only trying to further science but also trying to present their work in light that would prompt political leaders to take action.
• Unwilling to be transparent with their work, including in responding to requests to share background materials with some climate skeptics.

While none of these things paint the scientists at issue in a flattering light, they are do not even come close to amounting to the scandal of a generation, fraud or even a hoax.  Many news organizations, having reviewed the investigations, have tried to address prior coverage and to get the story right (see the New York Times and Newsweek for example). 

For particularly eager students, I often refer them directly to these independent reports:  The Guardian's investigation; the report of the House of Commons' investigation; and (while less rigorous still my personal favorite link to share with students) factcheck.org's investigation.

While I have found it tempting not to really address climategate in class because it seems somewhat of a waste of the class's time, I have come to believe that it is important to discuss this issue with students.  It has a lot of lessons to offer.  It certainly shows that in politics, and in this case in particular, perception is often more important than facts.  Despite that there was not all much of a gate in climategate, this does nothing to stop people from giving it great weight nonetheless.

-- Brigham Daniels

Notes from the 2nd World Congress on Cities and Adaptation to Climate Change

Bonn--At a climate conference in Germany, with lager in hand, I was prepared to ponder nearly any environmental insult or failure. But rat pee? Really? 

The urine of rats, as it turns out, is known to transmit the leptospirosis bacteria which can lead to high fever, bad headaches, vomiting, and diarrhea. During summer rainstorms in São Paulo, Brazil, floodwaters send torrents of sewage, garbage, and animal waste through miles of hillside slums and shanties. Outbreaks of leptospirosis often follow the floods. And in a metropolitan region of 20 million people, that’s a public health emergency.

I learned this and more at the 2^nd World Congress on Cities and Adaptation to Climate Change, organized by ICLEI-Local Governments for Sustainability and the World Mayors Council on Climate Change, with support from the U.N. Human Settlements Programme. The event brought together 600 delegates, including mayors and UN officials, to address what may be this century’s defining challenge: keeping up with the climate.

While some of our national politicians continue to ignore basic climate science, and while I continue to rail against my local climate-denying weatherman who just last month spoke to my kids’ elementary school, the rest of the world is getting on with life. Specifically, scores of municipal governments from all over the world—rich and poor, iconic and ordinary—are beginning to make plans for adjusting to a planet that is going to be warmer, wetter, and just plain weirder.

In consultation with the World Bank, the City of Jakarta, Indonesia, has launched an assessment of geographical hazards, socioeconomic vulnerabilities, and institutional weaknesses now posed by rising seas, hotter temperatures, and swifter storms. This coastal megacity, 40 percent of which lies below sea level and is sinking because of groundwater depletion, is developing comprehensive disaster management programs, plans for coastal fortification, and new storm water systems. Half-a-world away, the city of Toronto has employed sophisticated computer modeling and a set of 1,700 plausible future scenarios to prepare for the impacts of stronger snowstorms and wilder floods. They have excel spreadsheets (and accompanying PowerPoint slides) on just about everything—traffic-light outages, sewer overflows, falling bridges, you name it. And down south in São Paulo, city officials are calling for vital “slum upgrades,” safer zoning, and, yes, improvements to sanitation and public-health networks to prevent and treat leptospirosis.

Don’t think American mayors are sitting on their hands. While their efforts do not often make the national news, a few metropolitan areas are driving change in impressive, innovative ways, including Boston, New York, Chicago, and Seattle.

As in the anti-pollution movement of the 1970s, in the climate mitigation movement cities and local governments are leading the way. But they will hit a wall without the sustained support of national governments and the international community. The needed financial resources and scientific and engineering expertise are simply too great. And the shared nature of climate problems will sometimes require uniform standards and behavior across municipal boundaries. 

The Obama administration has begun developing its own climate-adaptation strategy which would require adaptation plans for all federal agencies. And just last week, the EPA issued its first-ever climate-change adaptation policy statement, which promises an official adaption strategy by June 2012, puts an emphasis on environmental justice, and includes a plan to survey existing laws to determine how adaptation goals should be implemented into the federal regime. (Full disclosure: as a member of the Obama administration at the time, I had a hand in both documents.)

It’s important for all of this work to keep going. Remember, politicians don’t always see the light, but they feel the heat. And the heat I’m talking about here is political.

- Guest post written by Robert R.M. Verchick.  He is a former environmental official in the Obama administration and a law professor at Loyola University New Orleans. He is the author of “Facing Catastrophe: Environmental Action for a Post-Katrina World.”  This post was cross-posted on the Center for Progressive Reform blog.

Electricity's Zombie App?

Picking up on Prof. McAllister's post Tuesday about top environmental law films, one recent movie should not be missed.  Strikingly shot, beautifully conceived, Into Eternity traces the story of the construction of Onkalo, Finland's version of the United States' Yucca Mountain: a deep-beneath-the-earth, labyrinthine permanent repository for high-level nuclear waste.

 

The film is as much art as it is documentary, but at its core its mission is to ask the hardest questions there are about spent nuclear fuel:  How is it that we continue to rely so heavily on nuclear power when no one has yet to find a politically palatable solution for the waste?  How can humans conceive of, much less maintain, a structure that will last 100,000 years when nothing we have ever built has lasted even a fraction of that time?  What are our obligations to future generations, whether from a theological or humanistic perspective, in terms of the planet that we all share?  If power storage is likely to become electricity's "killer app," Into Eternity seems to be asking, is nuclear waste its "zombie app"?  Is nuclear waste likely to come back years from now, undead-like, once gone but now resurrected, to haunt humankind and the planet on which we live?

The film is at its best when it asks these questions in its uniquely creative ways.  Filmmaker Michael Madsen puts his own, indelible imprint on the long-debated issue of nuclear waste.  Whether pointing out that "merely" 5,000 years later we hardly understand what the Egyptians were doing with their pyramids; asking if Edvard Munch's The Scream would be an effective, universal warning sign for Onkalo millennia or even centuries from now; showing the contrast between Onkalo's dark, underground tunnels and the gorgeous winter white forests they lie beneath, the film drives home both the difficulty of the task and the contrast between nature and the high-tech civilization we have erected.

Still, Into Eternity is rather one-sided.  It zeroes in only on the problems of nuclear waste without highlighting the many benefits we garner from nuclear power.  It emphasizes the temporal length of the waste's risk without discussing the likelihood.  It, quite intentionally, elicits emotion, particularly fear, without exploring the social, economic, and political dimensions of the dilemma.  True, the Scandinavian experts who are interviewed throughout the film are excellent, but they are used more as ornamentation to spotlight Onkalo's mind-boggling complexity than they are to explore it.

In the end, the choice of how to portray Onkalo is the artist's prerogative.  Art, at its core, is all about perspective. 

The vision of nuclear waste offered here may be a somewhat jaundiced one, but it is no less sobering -- or worthwhile -- for the wear.

-Lincoln Davies

When All Else Fails Bring Up the "Other" Carbon Problem

When confronted with friends or students who may be skeptical of the human role in climate change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO₂ the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the beginning of the Industrial Revolution. 

A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity.

Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms. 

It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of CO₂ and other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial. 

For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:

 

- Blake Hudson

Can't See the Forest for the People - Southern Forests Threatened By Increasing Population

The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%).  The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.

Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S. 

The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned.  Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments.  In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).

Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose.  The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.

A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope."  Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.

- Blake Hudson

Yucca Mountain: Episode II - Attack of the Clones?

Last week, I wrote about the growing controversy over the Obama administration's decision to shut down operations at the proposed Yucca Mountain nuclear waste repository north of Las Vegas, Nevada.

This week, news outlets are reporting that Nuclear Regulatory Commission Chairman Gregory B. Jaczko has been out-voted by other commission members.  The issue du jour is whether to release an unredacted preliminary safety report to Congress -- formally, draft "Volume III of the Safety Evaluation Report ('SER')" for the Department of Energy's now-withdrawn Yucca Mountain license application.

According to an April 28, 2011 letter released this week by Congressman Ralph M. Hall (R-Tx.), a majority of commissioners disagreed with Jaczko and sent an unredacted version of the technical report to Congress.  "I have reiterated my belief that public release of preliminary staff findings and conclusions establishes a dangerous agency precedent," Jaczko wrote in the letter.  "Notwithstanding my reservations, a majority of the Commission is willing to provide unredacted copies in response to Congressional Committee requests provided that they are held in confidence."

At multiple turns, Chairman Jaczko's letter emphasizes the tentative nature of the Commission staff's evaluation:

• "[T]he findings and conclusions in the document are preliminary."


• "The staff's preliminary findings may turn out to be incorrect or incomplete.  As such, they can mislead or confuse the public."


• "The redacted portions represent[] the predecisional findings and conclusions we normally protect from public release consistent with the Freedom of Information Act.  Even my colleagues and I have not had access to the redacted portions of SER Volume III.  As the appellate body for the agency, the Commission does not have access to predecisional, non-public information regarding the staff's substantive review of the Yucca Mountain application."

Perhaps more than anything, the Commission's release of this report exposes the increased politicization of energy policy in the nation's capital this year.  Yucca mountain long has been a political battleground.  Now, despite the Obama administration's express support for the nuclear industry, the current Congress is using the president's decision to shutter Yucca as political ammunition.

Add to this the ongoing debate over tax credits utilized by the oil industry, the increasing spotlight on natural gas fracking, and continuing malaise in D.C. on climate change policy, and the political nature of energy policy in the United States is laid bare.  It resurrects the persistent question of American energy law and policy: Will we let markets decide our fate, or will we affirmatively choose the energy path we desire?

Once again, the answer seems to be "neither."  Like the few Jedi scattered in an army of so many Republic clones, the real debate gets lost in the politics.

-Lincoln Davies

Feeling Lonely in a Climate Change Crowd

Over the past several years almost all of the Republican candidates vying for their party's nomination to run for President have tried to walk back past positions taken on climate change.  Governor Tim Pawlenty, for example, was a supporter of addressing climate change when he was governor of Minnesota, but when addressing CPAC earlier this year, he not only backed off, he said of his prior position, "it was a mistake, it was stupid, it was wrong." Last week, Ann Carlson wrote an informative post for Legal Planet documenting the many flip flops on this issue.

However, a few of the candidates have stayed true to their past positions on climate change.  Of these only Ambassador/Governor Jon Huntsman has stuck to his guns with a former position that acknowledged that climate change is a real problem that is worth addressing.  In an interview Time published earlier this week, he said,

This is an issue that ought to be answered by the scientific community; I’m not a meteorologist. All I know is 90 percent of the scientists say climate change is occurring. If 90 percent of the oncological community said something was causing cancer we’d listen to them. I respect science and the professionals behind the science so I tend to think it’s better left to the science community—though we can debate what that means for the energy and transportation sectors.

Given the political realities of the Republican nominating convention, this is a courageous position for a candidate to take.  Despite the fact that he stands with the National Academies of Science, the InterAcademy Council, the International Council of Academies of Engineering and Technological Sciences, the National Research Council, the American Association for the Advancement of Science, the American Meteorological Society, and even the Bush Administration’s Environmental Protection Agency, it is still awkward company to also stand alongside President Obama and the Sierra Club. 

 Obviously, both Democrats and Republicans have their blind spots and almost every politician flip flops on an issue at some time or another.  (President Obama, for example, is currently struggling with explaining how he could have voted against raising the debt limit when he was a Senator but why it is vital for Congress to raise the debt ceiling now.)  To me, it is a distressing commentary of our time that so many politicians are willing to walk away from their better judgment when it serves their political interests.  Particularly when it comes to issues as massive as climate change, it seems that we would be best served by politicians willing to tell us what we need to hear instead of what we just want to hear.

 -- Brigham Daniels

The Saga Continues . . .

Twelve years ago to the month, my wife and I stood in a long line at the classic Uptown Theater in northwest Washington, D.C. to see the much-anticipated Star Wars: Episode I The Phantom Menace.  Whatever your view is of that movie, Jar Jar Binks, or the science fiction genre in general, for me The Phantom Menace evoked a very particular response.  Having come to film as a child largely on repeated viewings of the VHS copy of the original Star Wars my father had made for me when it aired on network television -- the commercials almost, but not quite, perfectly cut out by the pause button -- The Phantom Menace left me awestruck by its effects, struggling with its disconnection from the original trilogy, and certain of only one thing: there would be more.

If anything was clear at the end The Phantom Menace, it was that there would be another installment of the Star Wars enterprise.  The story would go on.  The saga would continue.

Those who have been following the story of high-level nuclear waste in the United States must be feeling the same thing this week, as yet another installment of the saga that is Yucca Mountain was revealed.  While Congress is investigating the Nuclear Regulatory Commission's delay in issuing a final decision on the Department of Energy's withdrawal of its permit application for Yucca, this week the Government Accountability Office released a report examining what motivated DOE's decision to withdraw its application in the first place.  The GAO report is critical enough of the DOE that it is accompanied by a 14-page letter from the Department asserting, in part, that "some" of the GAO's "conclusions are based upon misapprehensions of fact."

A few highlights from the GAO report:

• "DOE’s decision to terminate the Yucca Mountain repository program was made for policy reasons, not technical or safety reasons."


• "After decades of effort and nearly $15 billion in spending, DOE succeeded in submitting a license application for a nuclear waste repository. However, since then, DOE has dismantled its repository effort at Yucca Mountain and has taken steps that make the shutdown difficult to reverse."
  


• "DOE undertook an ambitious set of steps to dismantle the Yucca Mountain repository program. However, concerns have been raised about DOE’s expedited procedures for disposing of property from the program . . .  In addition, DOE did not consistently follow federal policy and guidance for planning or assessing risks of the shutdown. Some of these steps to dismantle the program will likely hinder progress if the license application review process resumes—should NRC or the courts require it."
  


• "[There are] two broad lessons for developing a future waste management strategy. First, social and political opposition to a permanent repository, not technical issues, is the key obstacle. Important tools for overcoming such opposition include transparency, economic incentives, and education. Second, it is important that a waste management strategy have consistent policy, funding, and leadership, especially since the process will likely take decades."

Further media reports on the GAO study are available here, here, and here.

-Lincoln Davies

Yucca in the Crosshairs

When I teach administrative law, we start the semester with one of the primary lessons of the course:  "Everything in administrative law is political."  The same, often, can be said about energy law.  Our policy, our decisions, the directions we head on the nation's energy landscape are driven as much by politics -- interest groups, ideology, inertia -- as they are by reason, calculus, and a careful assessment of costs.

This is perhaps nowhere more true than with nuclear energy.  The political storm that surrounds that resource is on full display again this week.  As I posted previously, the House Energy and Commerce Committee has begun investigating the Obama administration's decision to (depending on your perspective) mothball or permanently shutter the Yucca Mountain project, which was originally slated to serve as a long-term storage facility for spent nuclear fuel.

Yesterday, the Committee held hearings on the matter and sparks flew.  The heart of the hearing was why the Nuclear Regulatory Commission has not yet acted on the Department of Energy's request to withdraw its permitting application for Yucca.  A prior decision by the Atomic Safety and Licensing Board ruled that DOE lacked the authority to withdraw its application.  That decision, however, is subject to review by the full NRC.

The implication by Republican lawmakers is that Chairman Gregory B. Jaczko, who was appointed by President Obama, has bowed to the administration's -- and his former boss's, Harry Reid (D.-Nev.) -- will by stalling issuance of the Commission's appellate decision.  A tied vote by the Commission would mean that the Board's decision stands, and other commissioners stated that they had given their votes last year.

A few highlights:

• Rep. Lee Terry (R-Neb.) called the NRC "the most secretive agency on Capitol Hill.”


• Rep. Joe Barton (R-Tex.) suggested that Chairman Jaczko was "foot-dragging . . . because he thinks on June the 30th" the Commission will have a different makeup.


• Rep. Morgan Griffith (R.-Va.) said it appears "from the outside" that the NRC is attempting to stall "until somebody comes along that agrees with you more than apparently whatever votes you got behind the scenes."

Yucca thus now may have officially earned the moniker "energy law's political yo-yo of the century."  No other project is as critical to the future of nuclear energy in this nation, and no other has been as stalled, delayed, debated, wrangled, or fought over.  It is, as politics so often are, truly up and down. 

Or, as Rep. Terry asserted about the NRC itself, "this is a politically run organization now." 

That sounds just like administrative -- and energy -- law to me.

Further coverage is available in the Washington Post, the New York Times, the Las Vegas Sun, and at E&E Daily.

-Lincoln Davies 

The Dirt on Climate Change

Discover recently highlighted a new (and old) tool to combat climate change - dirt. The article, titled "Could Dirt Help Heal the Climate?," details new research demonstrating that better stewardship of agricultural soils "would have the potential to soak up 13 percent of the carbon dioxide in the atmosphere today - the equivalent of scrubbing every ounce of CO₂ released into the atmosphere since 1980."

The research is focused on the benefits of "regenerative agriculture," which boosts soil fertility and moisture retention by increased use of composting, keeping fields planted year round and increasing plant diversity.  Not only do these methods have the potential to combat climate change, but they also can rejuvinate farmlands upon which a variety of developing societies depend for subsistence.

Agriculture has been one of the most disruptive forces interfering with the planet's carbon soil building process, both with respect to the planting of crops and grazing of animals. Land use changes associated with agriculture have "stripped 70 billion to 100 billion tons of carbon from the world's soils and pumped it into the earth's atmosphere, oceans, and lakes since the dawn of agriculture."

In one case study, the researchers determined that by adjusting agricultural methods to achieve 1.5 additional tons of carbon dioxide absorption a year - a task certainly within reach of agricultural practices - 28 million acres of California grazing lands could absorb nearly 40 percent of the state's total yearly carbon emissions from electricity generation.

This research further demonstrates the important role that land use practices play in combatting climate change. States and private actrors could certainly be more proactive in guiding agricultural practices on the nation's farmlands. Given that states are the primary arbiters of land use, however, the federal government and states should also be more proactive in seeking cooperative approaches to adjust land uses associated with agricultural soil retention and enhancement. When a few modifications to such a simple resource as dirt could have such profound impacts on carbon sequestration capabilities, failure to act should leave our governments and private actors feeling, well, down right dirty.  

- Blake Hudson

Adler on Climate Adaptation and Drought

Bob Adler has posted to SSRN a fascinating new article on drought's role in climate change.  Specifically, Prof. Adler argues that policy will need to shift how it balances the compassionate impulse to offer relief in times of disaster and the ways in which it encourages and discourages risky behaviors.  Noting that we are already "committed" to a certain amount of climate change because of past greenhouse gas emissions, Adler concludes:  

"[V]ulnerability increases with the frequency of the event, which decreases the recovery interval between disasters.  The result will likely be a vicious cycle of relief and increased risk.  Given the likelihood of this scenario, perhaps a more 'compassionate' approach is to implement systemic policies to reduce vulnerability to climate-induced disasters by increasing the sustainability of various economic sectors in advance."  To demonstrate what changes we might make, Adler uses the agricultural industry, though there are of course applications to numerous other economic sectors.

Adler's article is an important addition to the climate change literature, in particular because it adds to the growing discourse on climate adaptation -- and the increasingly clear consensus that we need both climate change mitigation and adaptation.  The focus on water is especially apropos given the close nexus between water availability and one of the key climate change inputs: energy production.

The article is Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law.  It can be downloaded here.

The abstract:

This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.

- Lincoln Davies

If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?

During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument.  Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down. 

Earlier today, Richard Frank posted a very thoughtful post on this subject.  According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act.  This is certainly the gist, for example, of the now familiar Justice Ginsburg barb:  “Congress told EPA to set the standards [in the Clean Air Act].  You are setting up a District judge as a kind of ‘super EPA.’” 

I agree with Prfoessor Frank.  However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims.  In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims? 

Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases. 

Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue.  In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers.  Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.

As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.

-- Brigham Daniels

Sarah Krakoff on "Planetarian Identity Formation and the Relocalization of Environmental Law"

Sarah Krakoff, Colorado Law School, has posted an intriguing article titled "Planetarian Identity Formation and the Relocalization of Environmental Law" on SSRN.  The article is forthcoming in the Florida Law Review and can be downloaded here. The abstract can be read at the bottom of this post. 

In a time of rapid globalization, Krakoff provides refreshing insights into the resurgence of localism regarding environmental issues, specifically in the context of climate change. Krakoff assesses a model in which society prepares itself to mitigate and adapt to climate change, regardless of whether the state is or is not successful in "prodding" individuals to act.  She also clearly describes what we, and the state, can learn from local initiatives to tackle climate change.

In doing so, she grapples with the realistic concern that despite important local action on climate, communities very well may fall short in their efforts if steps are not taken by other levels of government, especially since climate change is the "mother of all collective action problems." Krakoff further assesses the political and psychological barriers to breaking through to the world citizenry regarding the urgency of the climate change problem.

Despite localism not being a silver bullet solution, Krakoff provides analysis often overlooked by scholars. She provides a unique level of detail regarding just how much local action occurs at levels more local than even municipalities - which is beyond what conventional scholarship often considers meaningful local action.  Krakoff details first-hand interviews with formal local groups aimed at tackling climate change - called "Carbon Rationing Action Groups" - as well as more informal groups called "Neighborhood Climate Action and Sustainability Groups."

Ultimately, Krakoff's article is an engaging critique that manages to weave in the philosophical perspectives of the likes of Aldo Leopold, Wendell Berry, and Elinor Ostrom while at the same time providing an extremely practical guide to the role of localism in climate change mitigation and adaptation. Krakoff's thesis rings true in her statements that "there will be no solution to the world's environmental problems if we fail to focus on the livelihood and well-being of local communities throughout the world" and that "if we overemphasize the state's role at the expense of the role of the local law of climate change, we come away bored, despairing, apathetic, or all three."

"Planetarian Identity Formation and the Relocalization of Environmental Law"

ABSTRACT:

Local food, local work, local energy production – all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are two-fold, and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to reign in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the vicissitudes of a post-climate changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.

- Blake Hudson

 

Speaker Boehner Orchestrating Another EPA/Debt Showdown?

Following report comes from the Hill:

House Speaker John Boehner (R-Ohio) isn’t ruling out putting curbs on EPA regulations in play when lawmakers cast high-stakes votes next month on raising the federal debt ceiling.

The House passed legislation last week that strips EPA’s power to regulate greenhouse gases, but the Senate rejected the measure and Republicans failed to graft temporary limits to spending legislation.

Asked at a Thursday press conference whether he expects the issue to be part of negotiations on the debt limit, Boehner replied that there have not been decisions yet about what’s on or off the table in the debate.

He added: “Clearly, the direction of the EPA and the direction they're heading with their numerous regulations are going to cripple our economy and cripple the ability of employers to create jobs.”

Congress is likely to take up a debt limit increase measure after it returns in May, so stay tuned.

-- Brigham Daniels

 

Cloudy, With a Chance of More Clouds

Drive by any large power plant, and you are bound to notice the obvious.  The facility announces itself long before you make its acquaintance.  Big power plants come with big transmission needs, so the wires emanating from the facilities always make a striking sight.

This is perhaps no more apparent anywhere than it is in nuclear power plants.  Because their generating capabilities are so large -- and their capacity factors so high -- the bundle of wires running from nuclear facilities is inevitably noticeable.  A good example, if you find yourself in the vicinity, is Southern California Edison's San Onofre plant.  Drive by on I-5, and you can't miss the mass of perfectly parallel lines overhead.

The image of precise bundles of wires is fitting, perhaps, because the exactness that the nation's electrical transmission circuits demand stands in sharp contrast to the many loose ends currently in the nuclear industry.  Prior posts have touched on some of these points, but the recent developments continue only.  Looking at it today, if we were all weather anchors on the local news, the only forecast we could offer the industry would be "cloudy, with likely more clouds on the way."

To wit:

• The United States Court of Appeals for the Federal Circuit ruled last week largely in favor of the U.S. government in a case brought by Energy Northwest.  Energy Northwest's claim is for breach of contract for the government's failing to take its spent nuclear fuel, when Yucca Mountain remained non-operational.  The case is certainly notable for its ruling in favor of the government, but it may be even more notable for two other reasons.  First, the decision now stands with numerous other cases the government has lost as a result of the political stalemate over Yucca, as the DOE used a standard contract in promising to take utilities' waste under the Nuclear Waste Policy Act.  Second, Energy Northwest had won an award of nearly $57 million, but the government only appealed about $10 million of that award.  It let the rest -- $47 million -- stand.
  
  
• The New York Times is reporting increased resistanceto the Jaitapur nuclear power plant proposed to be built in India.  If it goes forward, it will be the largest in the world.  If it does not, we will know that Fukushima's shadow can reach at least as far as this only growing, energy-hungry nation.
  
  
• Meanwhile, in the U.S., the Nuclear Regulatory Commission has approved an increase in Exelon's Limerick Generating Station's capacity by about 32 MW.  Why?  Because in a nation that seems increasingly skittish about nuclear energy, we also need more energy.  Clouds, and more clouds.

-Lincoln Davies 

Energy Statistics from the Classroom to Capitols

I noted in a recent "Property and Renewable Energy" post on Land Use Prof Blog that I am teaching a "Law of Electricity" seminar this semester, which describes the laws that apply to all phases of electricity production (from the siting and construction of generation to transmission and distribution).  The course focuses primarily on wind energy, and I have assigned each of my students to compose a portion of a model wind energy code for Oklahoma and to suggest how portions of the code could benefit other states' energy policy projects.  As part of the project we have begun to speak with state senators and representatives in Oklahoma to identify the policy challenges facing wind and other energy industries.   One point raised in a recent call struck me as particularly relevant to professors teaching in this area and looking for creative projects for students.  One state senator expressed frustration over the lack of energy "facts" from neutral third parties, such as information on the current and projected price per kilowatt hour of electricity from all energy sources--both traditional and renewable.  If state legislators want these facts, why not have our students research, compile, and analyze them and send them to policymaking bodies?   The facts could be combined with relevant legal analysis, such as comparisons of local, state, and federal energy subsidies and other laws that have affected the pace of various forms of energy development.  Students in policy, economics, business, or science programs might be better equipped to provide many of these neutral third-party facts, but it seems that law students have an important role to play, too.  If federal policymakers in Washington benefit from hoards of white papers and briefs from active research institutions, why not give state and local policymakers similar information that could better inform their decisions?  

Professor Michael Gerrard at Columbia Law School is already putting this idea in action through the Center for Climate Change Law's Model Municipal Ordinance Project; the Center is currently seeking comments on its model ordinance.  Other law schools have also begun providing valuable information on energy to local, state, and federal policymakers.  To name a few, the University of Houston's Energy, Environment and Natural Resources Center presented carbon trading ideas to federal policymakers at the conclusion of its "Practice of Carbon Trading Class," which included business and law students.  Berkeley Law's Center for Law, Energy & the Environment similarly involves students in analysis of energy policy, as does the University of Colorado Law School's Center for Energy & Environmental Security, the University of Connecticut School of Law's Center for Energy and Environmental Law, the UC Davis School of Law's California Environmental Law & Policy Center, the UNC School of Law's Center for Law, Environment, Adaptation and Resources, Pace Law School's Pace Energy and Climate Center, Stanford's Steyer-Taylor Center for Energy Policy and Finance, San Diego School of Law’s Energy Policy Initiatives Center, the University of Texas School of Law's Center for Global Energy, International Arbitration, and Environmental Law, the University of Tulsa's and George Kaiser Family Foundation's National Energy Policy Institute, and Vermont Law School's Institute for Energy and the Environment.  I am sure that I have omitted key institutions here; I welcome comments and additions. 

With the rise of energy and environmental policy work in law schools, I also pose a question:  Are state policymakers getting the message? How can we better distribute the valuable information produced by bright law students so that policymakers have access to the neutral, third-party information that they are demanding?  In a world of overabundant information, it seems that classes embarking on code writing projects or policy whitepapers should include communications students to ensure that the  information produced does not go to waste.

-Hannah Wiseman

Yucca, v.4.2011

In only the latest of the many twists and turns of the saga that is Yucca Mountain, the House Energy and Commerce Committee announced last week that it will investigate the Obama administration's decision to de-fund the only site in the nation slated for long-term storage of high-level nuclear waste.  At least two factors clearly informed this move: the ongoing disaster at Fukushima Daiichi, and the growing GOP push-back against the incumbent administration's environmental agenda.

The press release makes this clear.  Some highlights:

• "Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Chairman John Shimkus (R-IL) are launching the inquiry after reviewing available evidence indicating there was no scientific or technical basis for withdrawing the [DOE's] application [for approval of the project]."
  
  
• "Congress is demanding answers about the administration’s decision to halt development of the only permanent U.S. site for spent nuclear fuel."

Congressman Upton's view of the Obama administration's decision, clearly, is quite dim:

The administration’s move to shutter Yucca raises serious red flags.  Despite the scientific community's seal of approval, extensive bipartisan collaboration, as well as nearly three decades and billions of taxpayer dollars spent, this administration has recklessly sought to pull the plug on the Yucca repository without even the sensibility of offering a viable alternative.

No matter what conclusions the investigation ultimately reaches, both the fact that it's happening and the tone in which it has been launched are notable.  They remind us of a few truths of energy policy in the United States:  We constantly allow what will eventually be pressing energy issues lie dormant in the background until a catastrophe or disaster pushes us to action.  When we do take action, we allow politics to divide us.  And our allowance of those divisions, in turn, fractures our overall energy policy.

Only time will tell whether the latest turn of events for Yucca Mountain will lead us down the same road we have repeatedly trod over the last century, or whether, as we enter the second decade of this millennium, we might find new hope in old problems.

Further coverage on the investigation is available here, here, and here.  The letters to Secretary Chu and Chairman Jaczko are, respectively, here and here.

-Lincoln Davies