September 27, 2011
When the Decline of an Endangered Species Hits Close to Home
When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.
The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.
So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.
- Blake Hudson
September 04, 2011
In Case You Missed It - The Week of August 28 to September 3
* The Obama administration decided to abandon proposed ozone regulations, which the oil industry and other business interests had criticized as unnecessarily costly.
* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.
* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.
* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.
* A beetle called the goldspotted oak borer is threatening trees in southern California.
* President Obama is pushing for a transportation spending bill, to fund federal highway projects and keep fuel taxes in place.
September 02, 2011
Obama EPA Backs Off Smog Regs
If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed. In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:
I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
This decision is interesting for a number of reasons. Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008. Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance. Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.
The decision also shows Obama's cold calculus about who will and will not be on his side in the next election. Environmentalists already have decried this move. But will they vote for him anyway in 2012? The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised.
And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns. In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection. The two go hand in hand. This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis. True sustainability requires both. Is this change a permanent shift or a temporary slide? Only time will tell.
August 19, 2011
Nuclear in the News
In the months since the disaster at Fukushima Daiichi, it seems that nuclear energy increasingly has been in the news. This week was no exception. If anything, it was a particularly busy few days for news on nuclear energy. A few highlights:
- A U.S. envoy to Japan severely criticized that nation's government for their response to the Fukushima disaster. According to an AP story, Kevin Maher, head of the envoy and the former diplomat to Japan, said: "“There was nobody in charge. Nobody in the Japanese political system was willing to say, ‘I’m going to take responsibility and make decisions.’”
- Meanwhile, Japanese citizens are still dealing with the radioactive aftermath of Fukushima.
- In New York, residents are split over Governor Cuomo's plan to shutter Entergy's Indian Point nuclear generating station. According to a recent poll, 49 percent of those living near the plant oppose shutdown, while 40 percent favor it.
- The Tennessee Valley Authority unanimously approved a proposal to complete construction of the Bellefonte nuclear power plant in Hollywood, Alabama. Prior construction ended in the late 1980s.
- At the same time, Exelon's CEO John Rowe spoke out on the difficulty of building new nuclear plants in the U.S. "The country needs nuclear power if it is going to tackle the problem of climate change," he said. "But we must keep our hopes for new generation harnessed to facts. Nuclear needs to be looked at in the Age of Reason and not the Age of Faith. It is a business and not a religion."
- And the NRC approved a license for a uranium milling operation in Wyoming.
August 07, 2011
In Case You Missed It -- The Week of August 1-7
* The famine in Somalia continues to worsen.
* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.
* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions. The hope is to spur greater use of carbon capture and sequestration technology.
* A new PAC has formed to promote energy efficiency legislation.
* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.
* The leopards are not happy.
August 7, 2011 in Africa, Biodiversity, Climate Change, Current Affairs, Energy, Land Use, Law, Legislation, North America, Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack
June 23, 2011
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.
June 09, 2011
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.
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.
June 02, 2011
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.
May 19, 2011
Yucca Mountain: Episode II - Attack of the Clones?
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.
May 12, 2011
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."
May 05, 2011
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.
April 14, 2011
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."
- 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.
April 07, 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.
April 06, 2011
EPA Dodges Major Bullet... But it Won't Be the Last Time Congress Fires its Gun
In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act. (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.) As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.” Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change. While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources. While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.
(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.)
Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations. And, this is not just because many in Congress oppose addressing climate change (though that is true). In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations. The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade. For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:
Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?
ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.
And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.
It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers. Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost. While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods. It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.
-- Brigham Daniels
Update: The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote. However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.
March 31, 2011
As the saga continues to unfold at Fukushima Daiichi, commentators continue to question what the disaster will mean for the future of nuclear energy. Numerous media outlets have extensive coverage, including at the Washington Post, the New York Times, the BBC, and Time.
This week's Economist has a particularly interesting article, "When the Steam Clears," which takes up the question from the international vantage. The article, in a way, begins with its conclusion: "Fear and uncertainty spread faster and farther than any nuclear fallout." Its point is clear. Whether one is on the nuclear energy bandwagon or not, perception matters terribly. And for an industry that, in the U.S. at least, has been largely stalled out for the immediate past decades, Fukushima is casting a rather long shadow.
More specifically, the article makes three observations worth highlighting:
- Nuclear is expensive. This is hardly revelatory, but the point The Economist makes with the fact is one often forgotten. It is worth remembering. As a result of nuclear's cost, most plants today are old: "[W]ith a median age of about 27 years and a typical design life of 40 a lot [of nuclear power plants] are nearing retirement."
- Nuclear is ubiquitous, if not dominant. Although the U.S. leads the world with over 100 reactors, we get about 20 percent of our electricity from them. Other nations take much more of their electricity from nuclear -- Germany at 26 percent, Japan at 29, South Korea at 35, Ukraine at 49, and, of course, France leading the globe at roughly three-quarters their total electric production. Still, the world average is much lower. "[N]nuclear power is much less fundamental to the workings of the world than petrol or aeroplanes. Nuclear reactors generate only 14% of the world’s electricity . . . ."
- Nuclear is not going away. While the disaster at Fukushima clearly has resurrected the specter of nuclear tragedy 25 years after Chernobyl and 30 post-Three Mile Island, even the dimmest of views on the technology has not stopped its continued use. Last week, with Fukushima still front page news, the Nuclear Regulatory Commission extended the license of one U.S. plant. And, as with many things nowadays, China is a leader. It is planning extensive nuclear expansion. "Though China, which has 77 reactors at various stages of construction, planning and discussion, has said it will review its programme in the aftermath of Fukushima, few expect it to stop entirely. China has a great appetite for energy, which will continue to grow."
Weighing these observations leads to a number of others that will certainly be in play as the fate of nuclear is considered, both here in the U.S. and abroad, in the aftermath of Fukushima.
First, virtually everyone will reevaluate plant safety because of Fukushima, and this may mean changes for both those already in existence and those planned to come online. The NRC has already said it will be taking a hard look in the U.S., and of course other countries have become even more skittish, as I posted two weeks ago. In any case, these (re)evaluations may well impact how much -- or at least how quickly -- new facilities are added to the grid. The massive stranded costs the companies that built plants in the U.S. in the 1970s and 80s faced after regulation kept changing cannot be far from the front of their collective minds.
Second, we still have not solved the largest stumbling block to using nuclear, whether that use is in its current proportion or an increased one. Long-term storage of high-level nuclear waste is a bugaboo. No state wants the waste. Yucca has dragged on for literally decades. Now it is unfunded. Meanwhile, there are already rumblings about whether the current de facto "solution" -- storing the waste at operating reactors, often in storage ponds -- should continue. None of those facts, or the questions they imply, are easy.
Third, if nuclear is going to be used, Fukushima only highlights the need to make the decision concsiously, openly, and democratically. As David Spence articulately observed yesterday on the envlawprofs email listserv, all energy options force tradeoffs. Fears associated with nuclear are persistent, whether they are accurate representations of its real risks or not. Compare the actual deaths and costs associated with nuclear over the past half-century with those of, say, coal, as Prof. Spence noted, and the factual (rather than perceived) assessment of risks may change. True, nuclear has clear downsides, but it has many advantages as well. As with climate change, if industry is going to continue pursuing nuclear as an option, clear signals are needed.
Right now, the legislative signals on climate change, in the U.S. at least, are muddled if not stalled out. Fukushima may have only the same effect for nuclear.
For an energy source that now provides one-fifth of our electricity, one wonders whether stalemate is the right answer. In a world where nuclear now faces multiple possible futures, that's a question we must ask.
March 23, 2011
Red Risk, Blue Risk
A few months ago, Dan Kahan, Donald Braman, and Hank Jenkins-Smith published an important article titled, Cultural Cognition of Scientific Consensus (available here). The article looked at several risks, two of which are quite relevant to today’s news and environmental law: the risks associated with climate change and those associated with storing nuclear waste.
While I do not want to rehash all of the article’s findings, consider one of the article’s major conclusions:
When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information probative weight based on its consistency with her prior estimatio. Because of identity protective cognition (Sherman and Cohen 2006; Kahan et al. 2007) and affect (Peters, Burraston, and Mertz 2004), such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation (Kahan et al. 2009), she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation (Jenkins-Smith 2001).When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information its probative weight based on its consistency with her prior estimation. Because of identity protective cognition and affect, such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation, she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation.
In other words, one’s worldview alters risk perception in ways we would never anticipate. Our minds seek out and give greater weight to information that harmonizes with our worldviews. Interestingly and disturbingly, even when risks are very complex and difficult for non-experts to assess, non-expert brains often trust one's worldview even if it means disagreeing with the experts.
While the article presents a very convincing case, a few items in the news this past week seemed to reinforce the article’s findings for me. (Granted, the article has left me uneasily wondering if I am just reinforcing my own priors.)
First, a post on a political science blog called Monkey Cage (discussed in an excellent post by Dan Farber earlier this week) suggests that as education increases, liberals are more likely to see climate change as caused by human activity whereas, surprisingly, as education increases, conservatives are less likely to see climate change as caused by human activity.
Both the Monkey Cage and Farber’s post provide the following helpful graph to illustrate this finding:
Second, CBS News recently released a poll showing, among other things, support for nuclear power in decline. This is not too surprising given the recent failing of the Fukushima Daiichi Nuclear Power Station. Interestingly however, CBS’s data show that Democrats are more worried than Independents and much more worried than Republicans about risks associated with nuclear power.
It is a bit humbling to recognize that in addressing major problems like climate change even our perceptions of risks can be divisive.
- Brigham Daniels
March 17, 2011
Fukushima, Chernobyl, and U.S.
While the people of Japan continue to deal with the devastation of the massive earthquake and tsunami last week, the tragedy there has reignited the debate over nuclear power worldwide. As the Washington Post reports, in the wake of the growing nuclear emergency in Japan, Germany announced that it will shut down seven of its older plants for safety inspections, and Switzerland declared a freeze on new nuclear construction.
At the same time, U.S. Department of Energy and Nuclear Regulatory Commission officials assured Congress of the safety of the domestic nuclear fleet, as did leaders in France of theirs.
Nuclear energy inevitably elicits strong responses from both sides of the aisle. Whether it is Yucca Mountain or the Skull Valley Goshutes' suggestion to store waste on their reservation, rhetoric is rarely scarce when it comes to atomic power.
There is no question that the people of Japan deserve all the world can offer in this time of dire need, but isn't there a much deeper question here about energy policy than the immediate nuclear debate that Fukushima has elicited?
It is another entirely to ask what is at the heart of our modern energy dilemma.
That is the question we should be asking. At a minimum, as Professor McAllister rightly noted earlier this week, it is a question about our energy consumption, and our failure to heed efficiency as a goal with the same vigor that our energy policy gives it lip service.
Even more fundamentally, however, it is a question about energy planning. Nuclear plants provide roughly 20 percent of the United States' current electrical production. In France, that figure is closer to 80 percent. Turning that train around cannot happen overnight.
It could, however, happen over a longer period of time -- if we want it to.
Fukushima is not Chernobyl. But however bad the crisis in Japan ends up being, it should now be as clear as ever that when it comes to energy, we face hard choices.
These choices are not necessarily dichotomies. We can solve climate change, and nuclear power may be part of that solution -- or it might not, or it might be only for awhile. Natural gas certainly will play a role. Carbon capture and sequestration holds promise, if we are willing to pay the higher prices and energy penalties the technology entails. Renewables are always there. The number of possible resource mixes, in short, for energy production is virtually limitless.
The question, then, is not: "Whether nuclear power?"
The question is: "What do we want our energy future to be?" And, correspondingly: "Will we plan for that future, or will we leave it to chance?"
As Amory Lovins reminded nearly a decade ago, "Our energy future is...choice -- not fate."
March 10, 2011
Plater on Deepwater Horizon and TVA v. Hill
Environmental law, by definition, looks forward. But it also pays to look back.
The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster. Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.
The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment. As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today. The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."
Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).
His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).
If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.
March 09, 2011
Earlier this week, Tim DeChristopher was found guilty by a Utah jury for unlawfully interfering with a public auction for oil and gas leases on federal lands near national parks in southern Utah. In many ways, the result was not surprising because there is little dispute that DeChristopher posed as an oil man and made and won bids on leases with no intention of paying for them.
Despite the clear cut nature of his case, this trial attracted national and even international media attention, including the New York Times, the Los Angeles Times, and the Guardian, to name a few. The reason for all the attention boils down to DeChristopher’s purpose in participating in the auction—for him it was a form of environmental protest mainly relating to climate change. Particularly from environmental quarters, DeChristopher’s trial is a story of an environmentalist so committed to combating climate change that he was willing to serve federal prison time if that is what it took to make a difference, see Time's Eco Centric Blog, Bill McKibben on Grist, and Robert Redford on the Huffingtonpost as examples. This line of thinking paints DeChristopher's actions as heroic—transforming him into something of a Gandhi for the planet.
To me the narrative of DeChristopher as noble activist misses the point. While certainly there is little dispute that DeChristopher’s actions will land him in prison and that he is willing to go there due to his beliefs, his actions are something to bemoan rather than celebrate.
First, while I respect his ideals, it is hard to see his actions as anything other than misguided. Even in the most generous light, how does posing to be an oil man and making fake bids on gas leases amount to anything but an empty symbolic gesture? There is little doubt that these oil and gas reserves are very modest and perhaps worthless. Why did he pick that fight? When it comes to climate change, aren’t there a bazillion more pressing problems than these gas leases?
Second and more importantly, even if these oil and gas leases should warrant our attention, there are plenty of ways to oppose them that are not only legal but also much more likely to prove successful than the route DeChristopher took. The leases were vulnerable to a number of significant political and legal challenges. Interestingly, these alternative tools—not DeChristopher’s actions—have at least stalled and in many cases stopped most of the leases at issue (and many others as well). DeChistopher threw himself on the road when he could have just helped to build a much more effective road block. Sure he wouldn’t have gotten all the press, but he would have been more likely to make a difference and done this without risking prison time. DeChirstopher’s methods do not amount to heroism. Instead, they are silliness.
Third, he did not need to break the law to make his point. Why did he have to pose to be someone he wasn’t and lie to the federal government during the auction? Even if all he wanted to do was protest, aren’t there many other ways to protest that would not have left him legally vulnerable?
DeChistopher made some mistakes. His empty gesture, his backwards strategy, his lies, and entanglement with the law were all mistakes. Yet, instead of trying to find a quiet way out, he held press conferences. Instead of owning up, he embraced the celebrity of the moment.
Certainly, DeChristopher’s actions have lessons for activists. Unfortunately, in the rush to praise his good intentions, the real lesson has been lost. As admirable as we might find his ideals, we need to understand his actions are not admirable. They are far from it. After his trial, DeChristopher invited others who were true to the cause to join him in prison. I hope activists see this invitation to join him for what it is: an invitation to join the ranks of the misguided who have squandered their potential.
- Brigham Daniels
September 23, 2009
Here's something to aspire to:
Green Buildings: Is Your City in the Top Ten?
The U.S. Green Building Council ranked cities across the country with the most LEED certified green buildings. A total of 88 green buildings makes Chicago number one. Portland and Seattle follow with 73 and 63 green buildings respectively.
This list, however, is not comprised of just major cities. Grand Rapids, MI made the top ten with 44 LEED certified buildngs, surpassing both Los Angeles and Boston.
Following are the top 10 U.S. cities, ranked by LEED certified buildings:
2. Portland, Or.--73.
4. Washington, D.C.--57.
6. San Francisco--50.
7. New York City--46.
8. Grand Rapids, Mich.--44.
9. Los Angeles--40.