Environmental Law Prof Blog

Electric Power in a Carbon Constrained World

There are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:

• The Role of Coal-Fired Electric Power Generation (John Dernbach, James Holtkamp, Arnold Reitze)

• Natural Gas: Will It Be the Fuel of Choice for Electric Power Generation? (Bruce Pendery, Richard Pierce, Hannah Wiseman)

• Electric Power from Alternative Energy (Lincoln Davies, Steven Ferrey, Alexandra Klass)

• Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)

Registration is available here. If you cannot attend in person, the program will also be streamed live here.

-Lincoln Davies

The Nuclear Conundrum

It has been nearly one year since a massive tsunami and earthquake shook Japan's nuclear plants. Up until that point nations seriously considered nuclear energy as a good alternative to meet growing energy demands and reduce GHG emissions. Government response to the incident, however, are varied. European nations, particularly Germany, which was planning to expand the life of some its plants has withdrawn such plans.China and India have no plans to scale back on their nuclear expansion program.India is slated to open one of its largest nuclear power plants in Kudankulum, Tamil Nadu, even though locals (and the Chief Minister of Tamil Nadu) are demanding proper explanation of safety checks from the Prime Minister. An news report (interview) of the issue can be found here. Similarly, in the United States, efforts to cut back on nuclear energy power remain contentious. On January 20, a Vermont District Court judge enjoined the State of Vermont from taking any action to shut down the Vermont Yankee nuclear power plant, after a State Senate vote against renewal of operations at the plant due to safety concerns was challenged. The court found that the Atomic Energy Act preempted State action. A copy of the decision can be found here .

For countries that want to pursue nuclear energy options, the motivation is economic growth. Even Germany, which has scaled back on nuclear energy, is faced with challenges of meeting its energy demands and there are reports that economic slow down in Germany coincides with its new nuclear policy. For countries such as China, India, and the United States, economic concerns govern their decision. Without a comprehensive nuclear safety policy globally, eventual nuclear power expansion appears imminent. What is required then is a close examination of nuclear energy laws, particularly in light of Japan's experience with continuing food contamination and a persisting dissatisfaction with government accountability. It is perhaps time to seriously consider, or reconsider, nuclear safety regulation.

Deepa Badrinarayana

ABA's 41st Annual Conference on Environmental Law

The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City.  If you have not been before, this is one of, if not the, premier environmental law conferences in the nation.  (If the weather turns right, there could also be really great skiing.)  The conference used to be known as the "Keystone Conference."

As usual, there is a fantastic line-up.  Just a few samples include:

• Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions


• Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption


• Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal


• Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion

Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).

To register, go to the conference website.

-Lincoln Davies

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

In Case You Missed It -- The Week of October 16 to 22

Climate change regulation is dead?  Not in California, which this week adopted the nation's first economy-wide cap-and-trade program.

The Tenth Circuit, in a 120-page decision, upheld a Clinton-era rule protecting 50 million acres of forestland from logging and roads.

The Council for an Energy-Efficient Economy released its first annual rankings of states; Massachusetts was first, with California second.

An advocacy study observed that FCC standards for cell phones "grossly underestimate[] the amount" of radiation that "smaller adults and children retain," as reported by Greenwire.

BP received approval for a plan to explore for oil in the Gulf of Mexico, its first such approval since the Deepwater Horizon disaster.

There is a fascinating article this week in The New Yorker about the aftermath of the Fukushima-Daiichi nuclear accident in Japan.  (hat tip: Joe Tomain)

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.

* Over a thousand arrests have been made of climate change activists protesting the Keystone XL pipeline, including Darryl Hannah and Bill McKibben.

* 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.

Must Read Energy Books

The most recent edition of the ABA Journal inspired me.  Its cover story is the feature "30 Lawyers Pick 30 Books Every Lawyer Should Read."

This got me thinking.  What are the must-read energy, or energy law and policy, books out there?

Looking around a little, I found one person's answer.  Alexis Madrigal, senior editor at The Atlantic and author of Powering the Dream: The History and Promise of Green Technology, came up with these "13 Energy Books You Need to Read":

1. Consuming Power by David Nye
2. Petrolia by Brian Black
3. The Prize by Daniel Yergin
4. Energy Policy in America Since 1945 by Richard Vietor
5. Technology and Transformation in the American Electric Utility Industry by Richard Hirsh
6. The Bulldozer in the Countryside by Adam Rome
7. Soft Energy Paths by Amory Lovins
8. Energy at the Crossroads by Vaclav Smil
9. Hubbert’s Peak by Ken Deffeyes
10. A Golden Thread by Ken Butti and John Perlin
11. Sorry Out of Gas: Architecture’s Response to the 1973 Oil Crisis by the Canadian Centre for Architecture
12. Wind Energy Comes of Age by Paul Gipe
13. The Discovery of Global Warming by Spencer Weart

Madrigal's is a fascinating, insightful list.  I'm still wondering: what's my list of must-read energy and energy law/policy books?

More to the point, what's yours?

-Lincoln Davies

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.

-Lincoln Davies

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.

Energy Law Treasure Trove

Earlier this year, the University of Utah law school hosted what turned out to be a great symposium on the topic, "The Future of Energy Law."  The articles from that conference have just been published, and offer what can only be described as a virtual treasure trove for energy law enthusiasts.

They feature some of the brightest minds in the game.  To wit:

• The Past, Present, and Future of Energy Regulation by Dick Pierce


• Controlling Greenhouse Gases from Highway Vehicles by Arnold Reitze


• Residential Renewable Energy: By Whom? by Joel Eisen


• The Next Step: The Integration of Energy Law and Environmental Law by Amy Wildermuth


• "Our Generation's Sputnik Moment": Regulating Energy Innovation by Joe Tomain


• The Future of Energy Law - Electricity by Ed Comer

We were lucky enough to hear in person these emerging ideas in what is an ever-changing field here in Salt Lake City earlier this January.

They're now all available for download as well.

-Lincoln Davies

Green Energy in Korea

I am in Seoul participating in the Korea Legislation Research Institute's conference, "Architecting Better Regulation to Overcome Energy Crisis."  The conference has produced a fascinating discussion about how best to transition to a renewable energy economy.

Korea has been using a feed-in tariff ("FIT") system to promote renewables deployment.  That changed in 2008 when the system came under criticism, in large part because it placed a strain on government finances.  This goes to show that how policies are designed very much matters.  FITs that raise consumer prices too much are subject to challenge on that ground, but those that choke government coffers may make the point even more acutely.

The plan now is to switch to a renewable portfolio standard ("RPS"), much like what many of the states in the U.S. are using.  It will be a very interesting case study that puts these two mechanisms in sharp contrast.  Debates about whether FITs or RPSs are better at incenting renewables deployment are longstanding; others have advocated that they can work together.  Korea's change may add some clarity to the discussion.

It may also prove to drive home some of the themes that emerged from the conference speakers:

• Jannik Termansen, a vice president at Vestas, noted that what industry needs is not as much one scheme over another, but rather, "TLC": not tender loving care, but "transparency," a "long-term, stable commitment," and "certainty."  He noted that installed wind capacity in the Asia-Pacific region has now surpassed that of North America, and looks to grow even further in coming years.


• Penny Crossley from the University of Sydney argued that renewables are important not just from a climate change perspective but also from that of energy security.  "Energy security is another reason why renewables are important," she said.  She noted six different ways that renewables promote energy security, and argued that we should commoditize those security benefits.


• Prof. Wu Zhonghu and Libin Zhang reminded us of the heavy role China will play in shaping the world's energy future.  They noted that China is now a leader in world energy consumption, and that China remains in a transition from a centrally planned system to a market-based one.  How this affects renewables development long-term remains to be seen.


• Nicolas Croquet highlighted the EU's 20-20-20 challenge.  It is ambitious indeed:  By 2020, 20% renewable energy use, a 20% reduction of greenhouse gas emissions from 1990 levels, and 20% decreased primary energy use.  Is this a goal to which Korea, the U.S., and others should aspire?  Should we go further?

It is a lot to chew on, both for the energy outlook for Asia and at home in the U.S. as well.

-Lincoln Davies

Getting to Commercial-Scale Carbon Capture and Sequestration

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

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

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

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

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

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

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

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

-Lincoln Davies

And Now for Some Good News?

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

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

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

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

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

Then there will be some good news indeed.

-Lincoln Davies

Forget the Light Bulbs

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

Usually.

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

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

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

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

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

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

-Lincoln Davies

Electricity's Zombie App?

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

 

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

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

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

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

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

-Lincoln Davies

Administrative Law, Politics, and Energy

On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain.  I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students.  McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:

I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . .  But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . .  It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.

McClure has a point.  It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not.  By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions.  We lawyers parse words for a living.  We need to be careful how we do so.  Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.

Most administrative law classes, including mine, focus on procedure, and rightly so.  Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on.  Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.

This is the chief point of my aphorism.  One cannot comprehend administrative law without understanding the politics that underlie it.  This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student.  Does the average administrative lawyer help craft agency policy on a daily basis?  No.  But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls?  Also no.  The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.

As I have alluded to in several prior posts, this may not be truer anywhere than in energy law.  Beyond Yucca, take just a few recent examples:

• Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked


• Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated


• Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence


• The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place

These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.

Any serious student of energy law -- or administrative law -- would do well to note that.  They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.

Politics matter.  Procedure does too.

-Lincoln Davies

Yucca Mountain: Episode II - Attack of the Clones?

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

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

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

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

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


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


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

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

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

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

-Lincoln Davies

The Saga Continues . . .

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

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

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

A few highlights from the GAO report:

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


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


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


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

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

-Lincoln Davies

Yucca in the Crosshairs

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

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

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

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

A few highlights:

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


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


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

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

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

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

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

-Lincoln Davies 

Ron Burgundy on Land-use-driven Contamination

Ok, not really. But, let's take the following exchange...

Brian Fantana: I think I was in love once. 

Ron Burgundy: Really? What was her name? 

Brian Fantana: I don't remember. 

Ron Burgundy: That's not a good start, but keep going... 

....and put it in the environmental context...

Brian Fantana: I grew up in a bucolic little town in Colorado. 

Ron Burgundy: Really? What is it's name? 

Brian Fantana: Leadville. 

Ron Burgundy: That's not a good start, but keep going... 

I had this strange thought as I passed a sign last week that seemed to indicate an exit for a town called Phosphate, Montana (though after a thorough review of Google Maps, I believe it merely demarks a road).

Of course, just west of this location is a town called Mineral, Montana, and a bit further north is Arsenic Creek in Augusta, Montana. And I had just driven through Smelterville, Idaho before entering Montana. Then there is Nitrate City, Alabama, Zinc, Arkansas and Molybdenum Mountain in Alaska.  One also has the option to drive down Uranium Drive in Lewistown, Montana or Asbestos Road in Cleveland, Georgia. 

It is apparent that these locations are so connected with past land use activities - even activities damaging to both the environment and human health - that the descripters of those activities live on.  

Particularly interesting is the prospective and retrospective view of the federal/state balance of authority in addressing the ills brought on by mineral mining and other types of contamination associated with land uses.  Much of this contamination is due to land use decisions that are the constitutional purview of state and local governments.  In other words, state government land use laws are responsible for there being, even today, a thick layer of phosphorus on the bottom of Lake Apopka in Florida, a location where I recently fished.  Yet cleanup of these sites, after contamination has occured, is the responsibility of the federal government. 

The Upper Clark Fork River in Montana is the largest Superfund site in the United States, and includes an area stretching from Butte to Anaconda to Missoula, Montana. The mining and smelting activity in Butte resulted in significant contamination of the Butte Hill (pictured right), and contaminated land for a stretch of 120 miles.

One might say these activities, and the subsequent codification of these activities in the names of towns and roads, are from a time before we knew the ills of land use driven contamination. Yet land use activities associated with agriculture, for example, remain regulated (or not regulated) almost solely by state and local governments, and are channeling copious amounts of nitrates and phosphates into the streams and rivers of the Mississippi River basin.  This basin drains 40% of the U.S. land base. In the aggregate, this runoff contributes to a variety of ills, even dead zones in the gulf - the actions of a farmer in Minnesota affects the fishing operations of a Louisiana fisherman.

Ultimately, it would be far more efficient to have greater inputs representing the interests of the nation as a whole into decisions which pollute our environment, rather than national taxpayers later paying to cleanup sites contaminated due to the apathy of local authorities. These inputs do not have to be prescriptive, though that may be one approach, but can be horizontal between state and local governments or bilateral with cooperative federalism or incentives provided by the federal government.  

In the end, Clearwater, Florida, Clearlake, California, and Greenville, Alabama sound like far more appealing destinations than Leadville, Colorado or Arsenic Creek in Montana.  Perhaps going forward the former names will be the descripters of choice for the natural environment that makes up our towns, streams and mountains. That would be, as Ron Burgandy would say, a "great story. Compelling, and rich." 

- Blake Hudson