Thursday, May 26, 2011
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.
- 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.
Thursday, May 19, 2011
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.
Thursday, May 12, 2011
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."
Thursday, May 5, 2011
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.
Monday, May 2, 2011
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
Thursday, April 28, 2011
No doubt that one of the most important forces in environmentalism over the last three decades has been the environmental justice movement. Leaders in this field -- Bunyan Bryant, Robert Bullard, Sheila Foster, Eileen Gauna, Hazel Johnson, and Beverly Wright, to name only a few -- changed the way environmental issues are seen. They point out that much of environmental protection has been myopic, and that its focus must change: to include equity, gender, income, race, and, ultimately, justice.
This week, the Department of Energy, the EPA, and the Department of the Interior, among others, are sponsoring what looks to be a phenomenal conference on the state of environmental justice today. From the press release:
The U.S. Department of Energy, along with the U.S. Department of Agriculture, the U.S. Department of Interior, the U.S. Environmental Protection Agency, the National Small Town Alliance, the Howard University School of Law and others, kicked off the State of Environmental Justice in America 2011 Conference today in Washington, D.C.
This year's conference theme is "Building the Clean Energy Economy with Equity," and will focus on climate change, green jobs and equity for low-income, minority and Tribal populations. The goal is to continue bringing together participants from Federal agencies, academia, business and industry, nonprofit organizations, faith-based organizations and local communities to participate in a dialogue on achieving equality of environmental protection.
Friday, April 22, 2011
This week has been a busy one in the world of hydraulic fracturing. Representatives Waxman, Markey, and DeGette released a report that describes "the types, volumes, and chemical contents of the hydraulic fracturing products used by the 14 leading oil and gas service companies." The report observes that between 2005 and 2009, the fourteen companies used 780 million gallons of more than 2,500 different hydraulic fracturing products, and these products ranged from common household chemicals to "extremely toxic" substances. Methanol has been the most "widely used" chemical. Much of this information already was available through summaries of chemicals used in Pennsylvania and New York, but this is the most comprehensive report to date and provides more specific information about the quantity of chemicals used than previous summaries have offered. The report concludes, for example, that "[t]he [fourteen] companies used the highest volume of fluids containing one or more carcinogens in Texas, Colorado, and Oklahoma."
Also this week, the Chesapeake Energy Corporation, the "second-largest producer of natural gas," suspended hydraulic fracturing operations in Pennsylvania after a natural gas well blowout "spewed thousands of gallons of fracking fluid into a nearby creek" and farm fields, according to Reuters and the Tulsa World.
Thursday, April 14, 2011
Drive by any large power plant, and you are bound to notice the obvious. The facility announces itself long before you make its acquaintance. Big power plants come with big transmission needs, so the wires emanating from the facilities always make a striking sight.
This is perhaps no more apparent anywhere than it is in nuclear power plants. Because their generating capabilities are so large -- and their capacity factors so high -- the bundle of wires running from nuclear facilities is inevitably noticeable. A good example, if you find yourself in the vicinity, is Southern California Edison's San Onofre plant. Drive by on I-5, and you can't miss the mass of perfectly parallel lines overhead.
The image of precise bundles of wires is fitting, perhaps, because the exactness that the nation's electrical transmission circuits demand stands in sharp contrast to the many loose ends currently in the nuclear industry. Prior posts have touched on some of these points, but the recent developments continue only. Looking at it today, if we were all weather anchors on the local news, the only forecast we could offer the industry would be "cloudy, with likely more clouds on the way."
- The United States Court of Appeals for the Federal Circuit ruled last week largely in favor of the U.S. government in a case brought by Energy Northwest. Energy Northwest's claim is for breach of contract for the government's failing to take its spent nuclear fuel, when Yucca Mountain remained non-operational. The case is certainly notable for its ruling in favor of the government, but it may be even more notable for two other reasons. First, the decision now stands with numerous other cases the government has lost as a result of the political stalemate over Yucca, as the DOE used a standard contract in promising to take utilities' waste under the Nuclear Waste Policy Act. Second, Energy Northwest had won an award of nearly $57 million, but the government only appealed about $10 million of that award. It let the rest -- $47 million -- stand.
- The New York Times is reporting increased resistanceto the Jaitapur nuclear power plant proposed to be built in India. If it goes forward, it will be the largest in the world. If it does not, we will know that Fukushima's shadow can reach at least as far as this only growing, energy-hungry nation.
- Meanwhile, in the U.S., the Nuclear Regulatory Commission has approved an increase in Exelon's Limerick Generating Station's capacity by about 32 MW. Why? Because in a nation that seems increasingly skittish about nuclear energy, we also need more energy. Clouds, and more clouds.
Friday, April 8, 2011
I noted in a recent "Property and Renewable Energy" post on Land Use Prof Blog that I am teaching a "Law of Electricity" seminar this semester, which describes the laws that apply to all phases of electricity production (from the siting and construction of generation to transmission and distribution). The course focuses primarily on wind energy, and I have assigned each of my students to compose a portion of a model wind energy code for Oklahoma and to suggest how portions of the code could benefit other states' energy policy projects. As part of the project we have begun to speak with state senators and representatives in Oklahoma to identify the policy challenges facing wind and other energy industries. One point raised in a recent call struck me as particularly relevant to professors teaching in this area and looking for creative projects for students. One state senator expressed frustration over the lack of energy "facts" from neutral third parties, such as information on the current and projected price per kilowatt hour of electricity from all energy sources--both traditional and renewable. If state legislators want these facts, why not have our students research, compile, and analyze them and send them to policymaking bodies? The facts could be combined with relevant legal analysis, such as comparisons of local, state, and federal energy subsidies and other laws that have affected the pace of various forms of energy development. Students in policy, economics, business, or science programs might be better equipped to provide many of these neutral third-party facts, but it seems that law students have an important role to play, too. If federal policymakers in Washington benefit from hoards of white papers and briefs from active research institutions, why not give state and local policymakers similar information that could better inform their decisions?
Professor Michael Gerrard at Columbia Law School is already putting this idea in action through the Center for Climate Change Law's Model Municipal Ordinance Project; the Center is currently seeking comments on its model ordinance. Other law schools have also begun providing valuable information on energy to local, state, and federal policymakers. To name a few, the University of Houston's Energy, Environment and Natural Resources Center presented carbon trading ideas to federal policymakers at the conclusion of its "Practice of Carbon Trading Class," which included business and law students. Berkeley Law's Center for Law, Energy & the Environment similarly involves students in analysis of energy policy, as does the University of Colorado Law School's Center for Energy & Environmental Security, the University of Connecticut School of Law's Center for Energy and Environmental Law, the UC Davis School of Law's California Environmental Law & Policy Center, the UNC School of Law's Center for Law, Environment, Adaptation and Resources, Pace Law School's Pace Energy and Climate Center, Stanford's Steyer-Taylor Center for Energy Policy and Finance, San Diego School of Law’s Energy Policy Initiatives Center, the University of Texas School of Law's Center for Global Energy, International Arbitration, and Environmental Law, the University of Tulsa's and George Kaiser Family Foundation's National Energy Policy Institute, and Vermont Law School's Institute for Energy and the Environment. I am sure that I have omitted key institutions here; I welcome comments and additions.
With the rise of energy and environmental policy work in law schools, I also pose a question: Are state policymakers getting the message? How can we better distribute the valuable information produced by bright law students so that policymakers have access to the neutral, third-party information that they are demanding? In a world of overabundant information, it seems that classes embarking on code writing projects or policy whitepapers should include communications students to ensure that the information produced does not go to waste.
Thursday, April 7, 2011
In only the latest of the many twists and turns of the saga that is Yucca Mountain, the House Energy and Commerce Committee announced last week that it will investigate the Obama administration's decision to de-fund the only site in the nation slated for long-term storage of high-level nuclear waste. At least two factors clearly informed this move: the ongoing disaster at Fukushima Daiichi, and the growing GOP push-back against the incumbent administration's environmental agenda.
The press release makes this clear. Some highlights:
- "Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Chairman John Shimkus (R-IL) are launching the inquiry after reviewing available evidence indicating there was no scientific or technical basis for withdrawing the [DOE's] application [for approval of the project]."
- "Congress is demanding answers about the administration’s decision to halt development of the only permanent U.S. site for spent nuclear fuel."
Congressman Upton's view of the Obama administration's decision, clearly, is quite dim:
The administration’s move to shutter Yucca raises serious red flags. Despite the scientific community's seal of approval, extensive bipartisan collaboration, as well as nearly three decades and billions of taxpayer dollars spent, this administration has recklessly sought to pull the plug on the Yucca repository without even the sensibility of offering a viable alternative.
No matter what conclusions the investigation ultimately reaches, both the fact that it's happening and the tone in which it has been launched are notable. They remind us of a few truths of energy policy in the United States: We constantly allow what will eventually be pressing energy issues lie dormant in the background until a catastrophe or disaster pushes us to action. When we do take action, we allow politics to divide us. And our allowance of those divisions, in turn, fractures our overall energy policy.
Only time will tell whether the latest turn of events for Yucca Mountain will lead us down the same road we have repeatedly trod over the last century, or whether, as we enter the second decade of this millennium, we might find new hope in old problems.
Thursday, March 31, 2011
As the saga continues to unfold at Fukushima Daiichi, commentators continue to question what the disaster will mean for the future of nuclear energy. Numerous media outlets have extensive coverage, including at the Washington Post, the New York Times, the BBC, and Time.
This week's Economist has a particularly interesting article, "When the Steam Clears," which takes up the question from the international vantage. The article, in a way, begins with its conclusion: "Fear and uncertainty spread faster and farther than any nuclear fallout." Its point is clear. Whether one is on the nuclear energy bandwagon or not, perception matters terribly. And for an industry that, in the U.S. at least, has been largely stalled out for the immediate past decades, Fukushima is casting a rather long shadow.
More specifically, the article makes three observations worth highlighting:
- Nuclear is expensive. This is hardly revelatory, but the point The Economist makes with the fact is one often forgotten. It is worth remembering. As a result of nuclear's cost, most plants today are old: "[W]ith a median age of about 27 years and a typical design life of 40 a lot [of nuclear power plants] are nearing retirement."
- Nuclear is ubiquitous, if not dominant. Although the U.S. leads the world with over 100 reactors, we get about 20 percent of our electricity from them. Other nations take much more of their electricity from nuclear -- Germany at 26 percent, Japan at 29, South Korea at 35, Ukraine at 49, and, of course, France leading the globe at roughly three-quarters their total electric production. Still, the world average is much lower. "[N]nuclear power is much less fundamental to the workings of the world than petrol or aeroplanes. Nuclear reactors generate only 14% of the world’s electricity . . . ."
- Nuclear is not going away. While the disaster at Fukushima clearly has resurrected the specter of nuclear tragedy 25 years after Chernobyl and 30 post-Three Mile Island, even the dimmest of views on the technology has not stopped its continued use. Last week, with Fukushima still front page news, the Nuclear Regulatory Commission extended the license of one U.S. plant. And, as with many things nowadays, China is a leader. It is planning extensive nuclear expansion. "Though China, which has 77 reactors at various stages of construction, planning and discussion, has said it will review its programme in the aftermath of Fukushima, few expect it to stop entirely. China has a great appetite for energy, which will continue to grow."
Weighing these observations leads to a number of others that will certainly be in play as the fate of nuclear is considered, both here in the U.S. and abroad, in the aftermath of Fukushima.
First, virtually everyone will reevaluate plant safety because of Fukushima, and this may mean changes for both those already in existence and those planned to come online. The NRC has already said it will be taking a hard look in the U.S., and of course other countries have become even more skittish, as I posted two weeks ago. In any case, these (re)evaluations may well impact how much -- or at least how quickly -- new facilities are added to the grid. The massive stranded costs the companies that built plants in the U.S. in the 1970s and 80s faced after regulation kept changing cannot be far from the front of their collective minds.
Second, we still have not solved the largest stumbling block to using nuclear, whether that use is in its current proportion or an increased one. Long-term storage of high-level nuclear waste is a bugaboo. No state wants the waste. Yucca has dragged on for literally decades. Now it is unfunded. Meanwhile, there are already rumblings about whether the current de facto "solution" -- storing the waste at operating reactors, often in storage ponds -- should continue. None of those facts, or the questions they imply, are easy.
Third, if nuclear is going to be used, Fukushima only highlights the need to make the decision concsiously, openly, and democratically. As David Spence articulately observed yesterday on the envlawprofs email listserv, all energy options force tradeoffs. Fears associated with nuclear are persistent, whether they are accurate representations of its real risks or not. Compare the actual deaths and costs associated with nuclear over the past half-century with those of, say, coal, as Prof. Spence noted, and the factual (rather than perceived) assessment of risks may change. True, nuclear has clear downsides, but it has many advantages as well. As with climate change, if industry is going to continue pursuing nuclear as an option, clear signals are needed.
Right now, the legislative signals on climate change, in the U.S. at least, are muddled if not stalled out. Fukushima may have only the same effect for nuclear.
For an energy source that now provides one-fifth of our electricity, one wonders whether stalemate is the right answer. In a world where nuclear now faces multiple possible futures, that's a question we must ask.
Thursday, March 24, 2011
Regulation of renewable energy is almost as old as the field itself. Who, for instance, doesn't want a t-shirt emblazoned with the logo "I <heart> PURPA"?
Clearly, the emergence of renewable portfolio standards, feed-in tariffs, net metering requirements, a "smart grid," and more, make renewable energy regulation a burgeoning field. This past January, the University of Utah law school hosted a symposium on "The Future of Energy Law," which touched on many of these issues.
Increasingly, though, there is an emerging scholarship on the intersection of the common law and renewable energy. How these legal developments shake out, too, will have important ramifications for our energy profile of tomorrow.
Three recent examples of this scholarship are worth noting. Or, as Professor Solum would say, "download them while they're hot!":
- Alan J. Alexander on The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest: "Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed to oversupply and rampant waste of oil. Similarly, lack of regulation of the developing wind energy industry could lead to wasteful practices regarding wind energy development. This Note argues that the Texas Legislature should pass laws clarifying that wind is a natural resource under the Texas Constitution, and that to promote [conservation and development], the Legislature should statutorily recognize wind rights as an interest severable from land ownership."
- Alexandra B. Klass on Renewable Energy and the Public Trust Doctrine: "This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance?"
- Troy A. Rule on Airspace in a Green Economy: "[A] growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land."
Wednesday, March 23, 2011
A few months ago, Dan Kahan, Donald Braman, and Hank Jenkins-Smith published an important article titled, Cultural Cognition of Scientific Consensus (available here). The article looked at several risks, two of which are quite relevant to today’s news and environmental law: the risks associated with climate change and those associated with storing nuclear waste.
While I do not want to rehash all of the article’s findings, consider one of the article’s major conclusions:
When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information probative weight based on its consistency with her prior estimatio. Because of identity protective cognition (Sherman and Cohen 2006; Kahan et al. 2007) and affect (Peters, Burraston, and Mertz 2004), such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation (Kahan et al. 2009), she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation (Jenkins-Smith 2001).When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information its probative weight based on its consistency with her prior estimation. Because of identity protective cognition and affect, such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation, she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation.
In other words, one’s worldview alters risk perception in ways we would never anticipate. Our minds seek out and give greater weight to information that harmonizes with our worldviews. Interestingly and disturbingly, even when risks are very complex and difficult for non-experts to assess, non-expert brains often trust one's worldview even if it means disagreeing with the experts.
While the article presents a very convincing case, a few items in the news this past week seemed to reinforce the article’s findings for me. (Granted, the article has left me uneasily wondering if I am just reinforcing my own priors.)
First, a post on a political science blog called Monkey Cage (discussed in an excellent post by Dan Farber earlier this week) suggests that as education increases, liberals are more likely to see climate change as caused by human activity whereas, surprisingly, as education increases, conservatives are less likely to see climate change as caused by human activity.
Both the Monkey Cage and Farber’s post provide the following helpful graph to illustrate this finding:
Second, CBS News recently released a poll showing, among other things, support for nuclear power in decline. This is not too surprising given the recent failing of the Fukushima Daiichi Nuclear Power Station. Interestingly however, CBS’s data show that Democrats are more worried than Independents and much more worried than Republicans about risks associated with nuclear power.
It is a bit humbling to recognize that in addressing major problems like climate change even our perceptions of risks can be divisive.
- Brigham Daniels
Friday, March 18, 2011
Similar to Professor McAllister's approach to nuclear energy in the classroom, I typically tell students in my energy and environmental law classes that there is no silver bullet in energy and that a range of fuel sources is necessary to satisfy the world's ever expanding demand for energy. As the tragedy in Japan unfolds, a host of "energy portfolio" questions will continue to emerge. Should nuclear energy continue to supply about nine percent of America's primary energy needs (and approximately twenty percent of U.S. electricity production, as Professor Davies observes below)? What are the alternatives? How dangerous are fossil fuels as compared to nuclear energy?
No matter the answer to these difficult questions, it is still clear that there is no silver bullet. If we move away from nuclear, the alternatives also pose substantial concerns. This week, for example, the EPA highlighted the dangers of coal in proposing national standards on toxic emissions from coal-fired power plants (in response to a court order). In announcing the standards, Administrator Jackson emphasized the devastating health effects of coal, such as asthma and nervous system damage in the young. The EPA estimates that the health and economic benefits from these new standards will be $140 billion annually and that the standards will prevent as many as 17,000 premature deaths and 11,000 heart attacks annually.
Natural gas, which is often touted as the clean alternative to coal, other fossil fuels, and nuclear, also has risks, as highlighted in my last post. In addition to concerns about chemicals and radioactivity levels in wastewater from hydraulically fractured wells, explosions of natural gas pipelines -- some deadly, and others not -- in Minneapolis, Allentown, and San Bruno remind us that no energy option is perfect.
To end on a point of optimism, however, it is encouraging to see the continued, albeit slow, expansion of renewable energy in the United States. As the Energy Information Administration observes, "Wind power has been the fastest-growing source of new electric power generation for several years," and U.S. shipments of photovoltaic cells and modules skyrocketed in 2009. Like any other energy source, renewables will not solve all of our problems, but they are a highly promising energy option. Building from the observations about energy planning in the post by Professor Davies below and Professor McAllister's points about energy efficiency, let's hope that as Americans mourn Japan's tragedy and reflect on our own energy options, we will be creative in contemplating an improved global energy future.
Thursday, March 17, 2011
While the people of Japan continue to deal with the devastation of the massive earthquake and tsunami last week, the tragedy there has reignited the debate over nuclear power worldwide. As the Washington Post reports, in the wake of the growing nuclear emergency in Japan, Germany announced that it will shut down seven of its older plants for safety inspections, and Switzerland declared a freeze on new nuclear construction.
At the same time, U.S. Department of Energy and Nuclear Regulatory Commission officials assured Congress of the safety of the domestic nuclear fleet, as did leaders in France of theirs.
Nuclear energy inevitably elicits strong responses from both sides of the aisle. Whether it is Yucca Mountain or the Skull Valley Goshutes' suggestion to store waste on their reservation, rhetoric is rarely scarce when it comes to atomic power.
There is no question that the people of Japan deserve all the world can offer in this time of dire need, but isn't there a much deeper question here about energy policy than the immediate nuclear debate that Fukushima has elicited?
It is another entirely to ask what is at the heart of our modern energy dilemma.
That is the question we should be asking. At a minimum, as Professor McAllister rightly noted earlier this week, it is a question about our energy consumption, and our failure to heed efficiency as a goal with the same vigor that our energy policy gives it lip service.
Even more fundamentally, however, it is a question about energy planning. Nuclear plants provide roughly 20 percent of the United States' current electrical production. In France, that figure is closer to 80 percent. Turning that train around cannot happen overnight.
It could, however, happen over a longer period of time -- if we want it to.
Fukushima is not Chernobyl. But however bad the crisis in Japan ends up being, it should now be as clear as ever that when it comes to energy, we face hard choices.
These choices are not necessarily dichotomies. We can solve climate change, and nuclear power may be part of that solution -- or it might not, or it might be only for awhile. Natural gas certainly will play a role. Carbon capture and sequestration holds promise, if we are willing to pay the higher prices and energy penalties the technology entails. Renewables are always there. The number of possible resource mixes, in short, for energy production is virtually limitless.
The question, then, is not: "Whether nuclear power?"
The question is: "What do we want our energy future to be?" And, correspondingly: "Will we plan for that future, or will we leave it to chance?"
As Amory Lovins reminded nearly a decade ago, "Our energy future is...choice -- not fate."
Friday, March 11, 2011
Speaking of looking both forward and back in environmental law, a case study in regulatory response to energy development is rapidly unfolding. Last week, the New York Times ran several stories on state and federal responses to a rapid expansion of natural gas extraction from shales—an expansion enabled by a technique called hydraulic fracturing (also called "fracking" or "fracing"). In those articles, the Times worried that the wastewater from gas wells in the Marcellus Shale (which underlies New York, Pennsylvania, and other parts of Appalachia) is more radioactive than suggested by New York's recent comprehensive environmental impact statement on high water volume fracking. The Times also suggested that wastewater treatment plants might not be adequately treating the water from these wells. Pennsylvania's Department of Environmental Protection promptly struck back on Monday, announcing the results of 2010 in-stream water quality testing that "showed levels at or below the normal naturally occurring background levels of radioactivity" and asserting, "We deal in facts based on sound science." The Times has also expressed concerns that the EPA—which has embarked upon a federal study of the effects of hydraulic fracturing on groundwater—might bend to industry's and energy states' requests to narrow the scope of its study. In testimony to Congress in the midst of the Times's investigative series on fracking, Administrator Jackson indicated that the EPA would explore radioactivity concerns.
As the recent focus in the news highlights, states and the federal government have begun to pay more attention to fracking as it expands. New York has taken a somewhat precautionary approach under its Environmental Quality Review Act—conducting the lengthy state environmental impact statement mentioned above and holding off on granting permits to high water volume fracking operations. Pennsylvania, on the other hand, has aggressively forged ahead with gas development while beefing up some of its environmental regulations. And it appears that gas may soon receive an even more favored status in Pennsylvania; on Wednesday, an organization that has consistently expressed concerns about the safety of fracking reported that Governor Tom Corbett has granted the head of Pennsylvania's Department of Community and Economic Development the power to "expedite any permit or action pending in any agency where the creation of jobs may be impacted."
If you wish to follow the unfolding regulatory saga, the EPA's Hydraulic Fracturing site offers periodic updates on the proposed scope of the EPA's study of hydraulic fracturing and the timeline for that study. Pennsylvania's Department of Environmental Protection posts frequently with statistics on wells drilled and regulatory updates in the fracking area (scroll down after following the link), and New York's Department of Environmental Conservation's regulatory activities related to shale gas drilling can be located on the agency's Marcellus Shale page. For any professors wanting good fracking graphics, the New York Times has a rich set of pictures and videos. In addition to offering an interesting case study in regulatory response, fracking involves a rich array of environmental regulations. The Resource Conservation and Recovery Act, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Air Act, and Clean Water Act (among others) all come into play under certain fracking scenarios: Chemicals must be transported to and used on site, wastewater must be disposed of—typically through POTWs or in underground injection wells (or possibly land application), and rigs and other on-site equipment generate air emissions.
Thursday, March 10, 2011
Environmental law, by definition, looks forward. But it also pays to look back.
The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster. Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.
The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment. As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today. The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."
Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).
His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).
If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.
Wednesday, September 23, 2009
Green Buildings: Is Your City in the Top Ten?
The U.S. Green Building Council ranked cities across the country with the most LEED certified green buildings. A total of 88 green buildings makes Chicago number one. Portland and Seattle follow with 73 and 63 green buildings respectively.
This list, however, is not comprised of just major cities. Grand Rapids, MI made the top ten with 44 LEED certified buildngs, surpassing both Los Angeles and Boston.
Following are the top 10 U.S. cities, ranked by LEED certified buildings:
2. Portland, Or.--73.
4. Washington, D.C.--57.
6. San Francisco--50.
7. New York City--46.
8. Grand Rapids, Mich.--44.
9. Los Angeles--40.
Wednesday, September 16, 2009
The Obama administration on Tuesday formally proposed joint CAFE-CAA fuel efficiency standards for cars and trucks that link fuel economy to reduced emissions from vehicles. Manufacturers would need to increase fuel economy 5 percent per year from 2012 to 2016, with new cars and trucks averaging 35.5 miles per gallon by 2016. Alternatively, manufacturers must meet a requirement that their vehicles on average emit no more than 250 grams of carbon dioxide per mile. With current technology, the measures are essentially equivalent. Current CAFE standards require that cars average 27.5 miles per gallon and light trucks average 23.1 miles per gallon. Download 2012-2016_CAFE_GHGN_PRM EPA Administrator Lisa P. Jackson estimates the proposed regulations would save 1.8 billion gallons of oil between 2012 and 2016, and prevent greenhouse-gas equivalent to the output of 42 million cars.
According to the Washington Post, Washington Post story President Obama appeared at a General Motors plant in Lordstown, Ohio, claiming the proposal is a boon for both the environment and the automobile industry because "it will give our auto companies some long-overdue clarity, stability and predictability." The Alliance of Auto Manufacturers, the industry trade group, supported Obama's remarks, stating "This is really the road map for automakers to follow." AAM estimated that the required changes would cost the auto industry $60 billion by 2016, but did not provide an estimate of price increase that consumers would experience..
The proposal, if finalized in a timely manner -- i.e. before Copenhagen -- is a victory on one front of the battle to reduce U.S. greenhouse gas emissions. The other front is the legislation to cap GHGs from stationary sources such as utility and industrial powerplants. According to the Washington Post, Senate Majority Leader Harry M. Reid (D-Nev.) said yesterday that the Senate may not act on climate legislation until next year. The Obama administration, of course, could pressure Congress by proceeding to regulate GHGs under the existing Clean Air Act through calling for new State Implementation Plans, requiring New Source Review permits impose LAER and BACT for GHG, and imposing New Source Performance Standards for GHG. However, the Administration is unlikely to play chicken with Congress absent proof that Congress is truly dragging its feet.
The Supreme Court in Massachusetts v. EPA almost 2 1/2 years ago determined that EPA has the power to regulate greenhouse gases from vehicles, prompting yesterday's action.
See the press release below:
EPA: Cathy Milbourn
DOT: Rae Tyson
FOR IMMEDIATE RELEASE
September 15, 2009
DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson Propose National Program to Improve Fuel Economy and Reduce Greenhouse Gases
New Interagency Program to Address Climate Change and Energy Security
“American drivers will keep more money in their pockets, put less pollution into the air, and help reduce a dependence on oil that sends billions of dollars out of our economy every year,” said EPA Administrator Lisa P. Jackson. “By bringing together a broad coalition of stakeholders – including an unprecedented partnership with American automakers – we have crafted a path forward that is win-win for our health, our environment, and our economy. Through that partnership, we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”
“The increases in fuel economy and the reductions in greenhouse gases we are proposing today would bring about a new era in automotive history,” Transportation Secretary Ray LaHood said. “These proposed standards would help consumers save money at the gas pump, help the environment, and decrease our dependence on oil – all while ensuring that consumers still have a full range of vehicle choices.”
Under the proposed program, which covers model years 2012 through 2016, automobile manufacturers would be able to build a single, light-duty national fleet that satisfies all federal requirements as well as the standards of California and other states. The proposed program includes miles per gallon requirements under NHTSA’s Corporate Average Fuel Economy Standards (CAFE) program and the first-ever national emissions standards under EPA’s greenhouse gas program. The collaboration of federal agencies for this proposal also allows for clearer rules for all automakers, instead of three standards (DOT, EPA, and a state standard).
Specifically, the program would:
· Increase fuel economy by approximately five percent every year
· Reduce greenhouse gas emissions by nearly 950 million metric tons
· Save the average car buyer more than $3,000 in fuel costs
· Conserve 1.8 billion barrels of oil
Increase Fuel Economy and Reduce Carbon Dioxide Emissions:
The proposed national program would
require model year 2016 vehicles to meet an estimated combined average
emission level of 250 grams of carbon dioxide per mile. Under the
proposed program, the overall light-duty vehicle fleet would reach 35.5
miles per gallon (mpg) in model year 2016, if all reductions were made
through fuel economy improvements. If this occurs, Congress’ fuel
economy goal of 35.0 mpg by 2020 will be met four years ahead of
schedule. This would surpass the CAFE law passed by Congress in 2007,
which required an average fuel economy of 35 mpg in 2020.
Reduce Greenhouse Gases:
Climate change poses a significant long-term threat to
Save Consumers Money:
NHTSA and EPA estimate that
Conserve Oil and Increase Energy Security:
The light-duty vehicles subject to this proposed National Program account for about 40 percent of all
Within the Auto Industry’s Reach:
EPA and NHTSA have worked closely to develop this coordinated joint proposal and have met with many stakeholders including automakers to insure the standards proposed today are both aggressive and achievable given the current financial state of the auto industry.
NHTSA and EPA expect automobile manufacturers would meet these proposed standards by improving engine efficiency, transmissions and tires, as well as increasing the use of start-stop technology and improvements in air conditioning systems. EPA and NHTSA also anticipate that these standards would promote the more widespread use of advanced fuel-saving technologies like hybrid vehicles and clean diesel engines.
NHTSA and EPA are providing a 60-day comment period that begins with publication of the proposal in the Federal Register. The proposal and information about how to submit comments are at: http://www.epa.gov/otaq/climate/regulations.htm for EPA and http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.43ac99aefa80569eea57529cdba046a0/
Draft Environmental Impact Statement:
NHTSA has prepared a Draft Environmental Impact Statement (EIS) for the proposed CAFE standards. The Draft EIS compares the environmental impacts of the agency’s proposal and reasonable alternatives. NHTSA is providing a 45-day comment period on the Draft EIS. Information on the submission of comments is provided at the above NHTSA Web address.
Wednesday, September 9, 2009
Tax Incentives for the “Green” Industry
Date: Thursday, September 10, 2009
Time: 12:30 PM - 2:00 PM ET
Between Lamborghini developing a hybrid and the proliferation of “green” marketing, there can be no doubt that green is going mainstream. Congress is trying their best to encourage the green vision by enacting (and expanding) tax incentives designed to use and develop renewable and sustainable resources. Obtaining the benefit of the incentives depends on a number of items, including satisfying the statutory criteria and placing the property in service in a timely manner. However, due to some recent changes by Congress, it is not dependent on the taxpayer having taxable income to offset.
What will be covered
This presentation focuses on identifying the available tax incentives and understanding how to take advantage of them. Whether you have worked on “green” projects in the past or this is a new area for you, this webinar will present the issues that must be addressed, including the tax compliance requirements.
This 60-90 minute webinar will provide participants with a conceptual understanding and practical application of the following:
- Overview of Available Tax Incentives
- Tax Credits
- Eligibility of Taxpayers To Take Advantage of the Incentives
- The Energy Production Tax Credit
- The Energy Investment Tax Credit
- Electing a Tax-Free Grants In Lieu of Tax Credits
- Special Depreciation and Deductions
Participants will learn how to:
- Identify the availability of “green” tax incentives for commercial projects
- Recognize fundamental ideas and solutions available to plan for tax efficient usage or development of renewable energy products
- Evaluate which tax incentive may be optimal in a situation
Register quickly and easily online to secure your space now. Or, please call 1-800-372-1033 option 6, then option 1, and refer to the date and title of the audioconference. Lines are open Monday through Friday from 8:30 a.m. to 7:00 p.m. ET, excluding most federal holidays.
Don't miss this opportunity to hear a lively, dynamic presentation. Not only are audioconferences an excellent way for you to stay current, with BNA you also get:
- Quality. Count on it. Nothing is canned.
- Objectivity. BNA Tax Management provides you with the best and most objective information.
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In addition, you'll receive:
- Personal attention. Once you've registered, send your e-mail questions in advance to email@example.com and they will be included in the program. You'll also have a chance to e-mail your questions during the audioconference.
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