Wednesday, February 26, 2014
In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.
The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:
First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.
Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.
Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.
There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff. Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.
At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.
That, students will see, is a bad fact for the defense, a good one for the plaintiffs.
- Michael Burger
Friday, July 26, 2013
Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace. The law, too, is quickly changing. If you're teaching or writing in this area this fall, I've listed some of my favorite resources below. Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.
The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required. These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons. This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago. The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks. All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process.
How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves. The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed. The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG." The project is still under construction.
The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically. There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.
Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time. Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations. The technique has, of course, changed quite a bit since then. The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed. Other older fracs used mostly water. But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques. Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions. Acid injected before the water can also help form fractures.The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers. The companies fracture each interval, which greatly enhances well production.
The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments. But the regulation of oil and gas development is very much in flux.
Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions. The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works. The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level. Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.
In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming. The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing. One USGS study in Arkansas found no impacts on water quality from "gas-production activities." The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.
The Fish and Wildlife Service has also begun to be more active in this area. On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals. In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules. Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.
Local and state: The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells. A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development. A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field. The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.
Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary. If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.
Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases. In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:
"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not protected by the “rule of capture,” but rather constitutes an actionable trespass."
There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable. When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior." See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA. United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).
Science: Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio. Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers. D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal." For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.
With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage. The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius. Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs. And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.
Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document. For impacts on local economies, Penn State has a number of good sources. And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.
And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas. A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Monday, September 17, 2012
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”
We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”
I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.
Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:
Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.
(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)
But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.
Here’s another excerpt from the report’s “Highlights”:
• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.
• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.
• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.
• 70 percent favored a national program to teach Indians about global warming.
This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)
But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.
Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at Loyola University New Orleans
Friday, August 17, 2012
Following up on Dave's post yesterday, also see this New York Times article on the NRC's new leadership. As reported by the Times, the NRC has suspended some licensing decisions until it can prove that the lack of storage for nuclear waste does not threaten public health and safety (order available here). What exactly is being suspended is of interest: any licensing decisions dependent on the Waste Confidence Decision and Temporary Storage Rule. Of further interest is how this issue was brought to a head--through litigation in the D.C. Circuit. It is fascinating to watch as all the branches play a part in moving the conversation about nuclear energy--and spent nuclear fuel--forward.
Friday, July 6, 2012
For those following the Yucca Mountain controversy, nuclear energy policy, and the fascinating administrative law story of the NRC: last week, Allison M. Macfarlane, a geologist who is considered an expert in the back end of the fuel cycle, was approved by the Senate as the new chair of the Commission. She follows Gregory Jaczko, who was instrumental in halting the Yucca Mountain Project and who resigned in May. Any predictions about what the new chair will bring?
Friday, June 22, 2012
Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis. For those following the case, it's now on appeal to the D.C. Circuit. EPA's statement of the issues, filed last week, keeps things crisp:
The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.
EPA's brief is due on July 18.
Thursday, May 17, 2012
On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA. This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come. It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.” Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.
The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.” Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges. The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law). The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.
Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at Shelley.Saxer@pepperdine.edu by June 15, 2012. Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers. Submitting authors will be notified of the results of the selection process by July 1, 2012. To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012. The selected authors will be responsible for paying their annual meeting registration fee and travel expenses. Questions should be directed to Professor Saxer at the above-noted email address.
Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.
Thursday, April 26, 2012
Most of us intuitively recognize that laws can spur technology innovation. But what about the other way around? Is there a certain threshold of technology availability and reliability necessary to motivate policy changes? That's the topic of an intriguing blog post here, which spotlights General Electric's policy and innovation study. The study, which comes complete with a new data visualizer, provides a graphic look at the prevalence of words like "wind" and "renewables" in GE's annual reports going back to 1892. Take a look at wind:
GE argues that the Energy Policy Act of 1992's production tax credits were key to the development of renewable energy technologies, like GE's industry standard 1.5-MW wind turbine. It also links the availability of those technologies to policymakers' willingness to implement renewable portfolio standards in many states.
If GE is right, what investments should we be making now? What technologies need more policy support, and what new policies are ripe given the technology we have available now?
(H/T to my energy law students for bringing this study to class!)
Monday, April 23, 2012
I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.
I'd been called for jury duty.
Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.)
Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution.
Hard Bargaining Rewarded
The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan.
Settlement claims are divided into those for economic loss and medical harm. It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize. So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.
As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.
The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.
Lost Hope for a Speedy Trial?
I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.
The Main Course
When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.)
Is their number up? Today, not by a long shot. But we’ll see.
April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Thursday, April 12, 2012
Last time, I posted some thoughts on Mingo Logan Coal Co. v. EPA, in which the D.C. District Court held that EPA exceeded its statutory authority when, after the Army Corps of Engineers issued a section 404 permit, EPA withdrew the underlying site specification. I considered the administrative-law and civil discourse aspects of the opinion in the previous post, but another interesting aspect of the case is the relationship between EPA and the Army Corps of Engineers.
Throughout the permitting process, EPA expressed concerns about the environmental impacts of Mingo Logan’s mountaintop mining project, but it never exercised its veto authority over the specification of disposal sites. Two years after the Corps issued the permit, however, EPA sent a letter to the Corps requesting that the latter revoke the permit. Only after the Corps refused did EPA take matters into its own hands by withdrawing the site specification—a post-permit step the court held outside the bounds of EPA’s statutory authority.
Mingo Logan involved the Clean Water Act, but environmental law relies on interagency relationships at every turn. Moreover, these relationships exist horizontally between federal agencies as well as vertically between federal and state agencies. Jody Freeman and Jim Rossi document a number of such relationships here, as does Eric Biber here.
Lately I’ve been working on a project that asks how courts should respond when agencies conflict. That circumstance can put the usual reasons for judicial deference—superior political accountability and expertise—in tension with one another so that it’s not immediately obvious which agency ought to prevail. While it’s unusual for two agencies to be opposing parties in court, it does happen occasionally, and it seems to me that there are a number of approaches a court might take to sort out the dispute.
But in most instances, agency conflicts lurk in the background of court cases. That is, the action agency gets sued and its behavior is the focus of judicial review. That’s how the Mingo Logan case worked; although the court described the relationship between the Corps and EPA, that relationship had little, if any, bearing on the court’s analysis. Rather, the court evaluated EPA’s action in the usual way—here, in terms of its conformity to the statutory mandate—with deference accorded as justified. This has also been the approach of the D.C. Circuit faced with the Yucca Mountain controversy, and there are many more examples. Although I’ve concluded that fidelity to statute is the proper approach in such circumstances, I admit that it’s a little unsatisfying. Is there any way to account for another agency’s involvement? Has anyone seen any novel approaches to this issue?
- Emily Meazell
Saturday, April 7, 2012
This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.
It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?
As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.
Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there. [For a good-day/bad day photo comparison, see this follow-up post.]
And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.
But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.
As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.
In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine.
But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.
It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.
After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.
In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.
In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.
Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)
Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)
Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”
In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)
Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.
April 7, 2012 in Air Quality, Asia, Cases, Climate Change, Current Affairs, Energy, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, March 15, 2012
This week, National Public Radio aired the first of a four-part series entitled BURN: An Energy Journal. The first, aired on the one-year-anniversary of Japan’s earthquake, focused on Fukushima, asking what we’ve learned, and what’s next.
Also this week, the National Council on Radiation Protection & Measurements held its annual meeting, with a focus on two events: a study showing medical exposures to radiation now account for about 50% of the United States population’s annual radiation dose; and the accidents at the Fukushima reactors and storage facilities. Both issues raise questions about lessons learned and best practices going forward (and look for a later post on low-level radiation exposure).
Here’s a sample of the law, policy, and science flurry of activity over the past week or so that’s focused on some of the enduring questions surrounding nuclear technology made especially salient by Fukushima’s anniversary:
- Scientific American: 1 Year Later, What Does Fukushima Mean for Nuclear Research?
- The journal Science published a study entitled Nuclear Fuel in a Reactor Accident, which discusses research priorities for developing predictive models of radionuclide behavior during and after accidents
- A U.S. Geological Survey study measured minimal amounts of fallout in U.S. precipitation following Fukushima
- Lincoln Davies’s piece Beyond Fukushima: Disasters, Nuclear Energy, and Energy Law appeared on ssrn
- National Geographic published an article exploring energy shortages in Japan
What are the most pressing issues for nuclear technology? What have we learned? And by the way, does your answer depend on how you perceive risk?
Wednesday, March 14, 2012
Louisiana State University Paul M. Hebert Law Center is inviting articles for its inagural issue of the Journal of Energy Law and Resources. Details regarding the submissions and deadlines are available here:
Monday, March 5, 2012
The Prime Minister of India, Dr. Manmohan Singh has for long enjoyed a reputation as a rare type of politician. In a country where politics are cloaked with corruption problems, he has stood out as a politician of serious intellectual rigor, humble demeanor, and personal integrity. Recently, however, Dr. Singh gave in to a rather unexpected frustration when he decried American NGO-funded support for protests against the nuclear power plant in Kudankulam in Tamil Nadu and the use of genetically modified crops in India. These NGOs, Dr. Singh argued, did not understand the energy needs of India. He emphasized that the nuclear power plant could not be left idle and had to move forward. Additionally, cases have apparently been filed against four NGOs for alleged misuse of foreign donations to fund protest, and 77 foreign NGOs listed in a government watch list. (The newsreport can be found here).
In a follow up to the Prime Minister’s comments, US charge d’affaires Peter Burleigh reportedly responded that the United States would comment after verifying the factual accuracy of the statement. Russian Ambassador Alexander Kadakin, however, felt no such compunction. Ambassador Kadakin reportedly responded that the Russian administration had suspected such funding, particularly since the protests began following the Fukushima tragedy and not before the accident. (the report can be found here).
Indian NGOs reportedly responded with a letter addressed to the Prime Minister Singh’s remarks and by bringing legal action. A group of NGOs including a former Indian Supreme Court judge, former Chairperson of the Atomic Energy Regulatory Board, and former Union Power Secretary wrote a letter to the Prime Minister (the report and letter can be found here), challenging the undemocratic underpinnings of the Prime Minister’s remark. They provocatively added, “We are not China.” The head of another NGO filed a defamation action against the Prime Minister for labeling their efforts as a foreign plot or agenda. (report can be found here)
The main question, though, is this: so what if environmental protests are funded by foreign NGOs?
Barring a few restrictions, it is not illegal to provide funding to civil society in India. Unless there are accounting illegalities, there is no reason that local communities should not be legally funded by those with a shared concern. By all means the Indian government could try to enact legislation prohibiting foreigners to fund local civil society initiatives. Of course, such an effort would be ironic considering that foreign investors are vested in nuclear power plants. Surely, Ambassador Kadakin’s concern did not stem so much from his altruistic interest in India’s energy needs as it did from the fact that the Nuclear Power Corporation of India Limited had planned to collaborate with Russia in building two nuclear power plants.
It would be equally ironic that the government, which few months back battled to allow foreign direct investment in India, would oppose foreign funding for supporting civil society endeavors. It is certainly not something that one would expect from Dr. Manmohan Singh, a major architect of India’s economic liberalization reforms.
Let me add, however, that India indeed faces a steep challenge in meeting its energy needs. Millions remain without basic power infrastructure. The sub-continent has limited natural energy resources and has to rely on foreign supplies. Of late, its ability to import oil from Iran has been greatly impeded by foreign sanctions that have limited its ability to make payments to the government. (see report here). India faces serious energy predicament, even as growth rates drop and competition consistently looms across the border from China. Prime Minister Singh is certainly not in a pretty spot right now.
However, questioning legal and peaceful protests by concerned members of the civil society is not the solution. The need of the hour is transparency and efforts by the government to explain and persuade those living in the vicinity of a nuclear power plant of its safety. As we near the first anniversary of the 2011 Japanese Tsunami (March 11), we cannot ignore or wish away the terrifying moment when the nuclear plants in Japan did not shut down. We cannot ignore how Japan’s tragedy paralyzed the world, including its economy. Japanese continue to grapple with radiation challenges. That is the state in an economically developed nation.
Further, as the challenge to the U.S. Nuclear Regulatory Commission’s approval of the two nuclear power plants in Georgia by the Tulane Environmental Law Center for failing to consider the effect of the Fukushima tragedy in the EIA demonstrates, convincing people that nuclear energy is safe is not going to be a cakewalk in a post Fukushima world. The promise of electricity is alluring. But, it is no match to the fear of potential annihilation. Such promise must be backed by technology, sound safety procedures, effective compensation schemes, and legitimate efforts to engage in dialogue. Democratic governance has its own price.
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)
On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.
On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.
Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.
For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-‐50 billion range. (Take $6 billion in compensation fund pay-‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?
To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil.
Monday, February 20, 2012
Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?
The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.
1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.
2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.
3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.
Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.
I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.
To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)
In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.
Better still, they should bring their young children or aging parents.
This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.
I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)
Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)
The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.
Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)
Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.
But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!
February 20, 2012 in Air Quality, Asia, Climate Change, Energy, Food and Drink, Governance/Management, International, Land Use, Law, Sustainability, Toxic and Hazardous Substances, Water Quality, Weblogs | Permalink | Comments (3) | TrackBack (0)
Thursday, February 16, 2012
Last time, I wrote about the Yucca Mountain controversy and highlighted the question of how to structure a nuclear waste siting process in such a way as to maximize the voices of many stakeholders. The Blue Ribbon Commission has recommended a voluntary engagement approach for the United States, whereby an agency would publish technical criteria and invite interested communities to volunteer to host such a site. This suggestion, I’ve noticed, often generates you’ve-got-to-be-kidding-me laughter—what community would ever volunteer?
As it turns out, some do, raising a host of other questions about process design in the context of dread risks. Last month, Spain announced that a small village south of Madrid has been selected to host the country’s first full-fledged nuclear waste repository. According to news reports, the citizens of Villar de Canas are thrilled: they lobbied hard for the facility and hope it will remedy the town’s 30% jobless rate.
A similar story is unfolding in the United States: the town of Carlsbad, New Mexico is already host to the Waste Isolation Pilot Plant (WIPP), which stores transuranic waste in an underground repository. The location was selected in the early 1970s, with strong local support. Even so, the first shipment of waste didn’t arrive until 2001, following many years of technical study, stakeholder negotiations, legal challenges, and legislative activity. Now that Yucca has stalled, Carlsbad is volunteering to take the nation’s high-level waste.
Putting aside the technical considerations—for instance, the salt beds underlying Carlsbad are excellent geologically, but they are not perfect—could Carlsbad’s interest short-circuit what should be a more deliberative process? Any repository will bring money and jobs to a locality, in addition to benefits packages that are typical of nuclear waste siting schemes. Should other communities have a chance to compete for those benefits? Should we be concerned that money and jobs operate as bribes? Is there an environmental justice problem here, or should we be comfortable with communities speaking for themselves?
A number of process design features might ease some of these concerns. For example, voluntary engagement schemes require strong veto authority for the potential host communities to ensure they have meaningful bargaining power. They start by identifying a site’s necessary technical criteria as a way of building scientific legitimacy into the process. And they do allow communities to compete. Of course, our federal scheme adds some interesting wrinkles to the process. While Spain could work directly with its localities, the United States will have to develop consensus across states, tribes, and local governments. It promises to be a long road ahead, but hopefully we can collectively make a decision about where to site our waste.
Wednesday, February 15, 2012
Existing buildings – in their physical presence, design, and operations - challenge the goal of sustainability in the built environment. Older buildings can be leaky, inefficient, and even unhealthy, and they typically do not perform well against the expectations that we draw from today’s green building techniques and technology.
There is evidence that green building programs are impacting the existing building stock through retrofit programs offered in LEED and others. The number of projects certified under LEED for Existing Buildings: Operations and Maintenance (EBOM) surpassed those certified under its new construction counterpart in 2009. Spending on remodeling and retrofits has been on the rise and is predicted to grow to $10.1 billion-$15.1 billion by 2014. Recently, the USGBC announced that LEED-certified retrofits have outpaced new construction certifications on a cumulative basis.
We might view green retrofits of existing buildings as significant. Of course, the past is a major obstacle for achieving sustainability in the built environment, and the provision of alternatives to “business as usual” in existing structures is itself a victory. In addition, and perhaps more importantly, the growth in green retrofits suggests that sustainability may involve changes in people as well as buildings.
- Keith Hirokawa