Environmental Law Prof Blog

Environmental Justice @ 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.

If you are in or near D.C., it should be time well spent.  The conference's website is here.  The program is here.

-Lincoln Davies

More Hydraulic Fracturing Developments

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. 

-Hannah Wiseman

Cloudy, With a Chance of More Clouds

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

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

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

To wit:

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

-Lincoln Davies 

Energy Statistics from the Classroom to Capitols

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

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

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

-Hannah Wiseman

Yucca, v.4.2011

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

The press release makes this clear.  Some highlights:

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

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

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

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

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

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

-Lincoln Davies

Nuclear(?) Future(s)

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:

1. 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."
    
2. 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 . . . ."
    
3. 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.

-Lincoln Davies

Renewable Energy and the Common Law

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."

-Lincoln Davies

Red Risk, Blue Risk

 A few months ago, Dan Kahan, Donald Braman, and Hank Jenkins-Smith published an important article titled, Cultural Cognition of Scientific Consensus (available here).  The article looked at several risks, two of which are quite relevant to today’s news and environmental law:  the risks associated with climate change and those associated with storing nuclear waste.

While I do not want to rehash all of the article’s findings, consider one of the article’s major conclusions:

When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information probative weight based on its consistency with her prior estimatio. Because of identity protective cognition (Sherman and Cohen 2006; Kahan et al. 2007) and affect (Peters, Burraston, and Mertz 2004), such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation (Kahan et al. 2009), she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation (Jenkins-Smith 2001).When mechanisms of cultural cognition figure in her reasoning, a person processes information in a manner that is equivalent to one who is assigning new information its probative weight based on its consistency with her prior estimation. Because of identity protective cognition and affect, such a person is highly likely to start with a risk perception that is associated with her cultural values. She might resolve to evaluate the strength of contrary evidence without reference to her prior beliefs. However, because of culturally biased information search and culturally biased assimilation, she is likely to attend to the information in a way that reinforces her prior beliefs and affective orientation.

 In other words, one’s worldview alters risk perception in ways we would never anticipate.  Our minds seek out and give greater weight to information that harmonizes with our worldviews.  Interestingly and disturbingly, even when risks are very complex and difficult for non-experts to assess, non-expert brains often trust one's worldview even if it means disagreeing with the experts.

While the article presents a very convincing case, a few items in the news this past week seemed to reinforce the article’s findings for me.  (Granted, the article has left me uneasily wondering if I am just reinforcing my own priors.)

First, a post on a political science blog called Monkey Cage (discussed in an excellent post by Dan Farber earlier this week) suggests that as education increases, liberals are more likely to see climate change as caused by human activity whereas, surprisingly, as education increases, conservatives are less likely to see climate change as caused by human activity. 

Both the Monkey Cage and Farber’s post provide the following helpful graph to illustrate this finding:

Second, CBS News recently released a poll showing, among other things, support for nuclear power in decline.  This is not too surprising given the recent failing of the Fukushima Daiichi Nuclear Power Station.  Interestingly however, CBS’s data show that Democrats are more worried than Independents and much more worried than Republicans about risks associated with nuclear power.

It is a bit humbling to recognize that in addressing major problems like climate change even our perceptions of risks can be divisive.   

- Brigham Daniels

Energy Options

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.

-Hannah Wiseman

Fukushima, Chernobyl, and U.S.

While the people of Japan continue to deal with the devastation of the massive earthquake and tsunami last week, the tragedy there has reignited the debate over nuclear power worldwide.  As the Washington Post reports, in the wake of the growing nuclear emergency in Japan, Germany announced that it will shut down seven of its older plants for safety inspections, and Switzerland declared a freeze on new nuclear construction.

At the same time, U.S. Department of Energy and Nuclear Regulatory Commission officials assured Congress of the safety of the domestic nuclear fleet, as did leaders in France of theirs.

Nuclear energy inevitably elicits strong responses from both sides of the aisle.  Whether it is Yucca Mountain or the Skull Valley Goshutes' suggestion to store waste on their reservation, rhetoric is rarely scarce when it comes to atomic power.

There is no question that the people of Japan deserve all the world can offer in this time of dire need, but isn't there a much deeper question here about energy policy than the immediate nuclear debate that Fukushima has elicited? 

It is one thing to invoke Chernobyl as a symbol for why nuclear energy should face a swift end -- or to assert that Fukushima "should not carry weight" in the global debate over nuclear power.

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?"

So far, the United States largely has coursed one path.  The question Fukushima poses to us is whether we are willing to chart another.

As Amory Lovins reminded nearly a decade ago, "Our energy future is...choice -- not fate."

-Lincoln Davies

Pennsylvania, New York, and the EPA: A Case Study in Varied Environmental Regulatory Response

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. 

-Hannah Wiseman

Plater on Deepwater Horizon and TVA v. Hill

Environmental law, by definition, looks forward.  But it also pays to look back.

Today, one of the most experienced leaders in the field, Prof. Zyg Plater, will help us do both.  He will give two lectures at the University of Utah S.J. Quinney College of Law.

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.

-Lincoln Davies

Here's something to aspire to:

Green Buildings: Is Your City in the Top Ten?

The U.S. Green Building Council ranked cities across the country with the most LEED certified green buildings. A total of 88 green buildings makes Chicago number one. Portland and Seattle follow with 73 and 63 green buildings respectively.

This list, however, is not comprised of just major cities. Grand Rapids, MI made the top ten with 44 LEED certified buildngs, surpassing both Los Angeles and Boston.

Following are the top 10 U.S. cities, ranked by LEED certified buildings:

1. Chicago--88.

2. Portland, Or.--73. 

3. Seattle--63.

4. Washington, D.C.--57.

5. Atlanta--53.

6. San Francisco--50.

7. New York City--46.

8. Grand Rapids, Mich.--44.

9. Los Angeles--40.

10. Boston--38.

New CAFE-GHG Proposal

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:

CONTACT:

EPA: Cathy Milbourn

milbourn.cathy@epa.gov

202-564-7849

202-564-4355

 

DOT: Rae Tyson

202-366-9550

 

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

 

WASHINGTON – U.S. Department of Transportation (DOT) Secretary Ray LaHood and U.S. Environmental Protection Agency (EPA) Administrator Lisa P. Jackson today jointly proposed a rule establishing an historic national program that would improve vehicle fuel economy and reduce greenhouse gases.  Their proposal builds upon core principles President Obama announced with automakers, the United Auto Workers, leaders in the environmental community, governors and state officials in May, and would provide coordinated national vehicle fuel efficiency and emissions standards.  The proposed program would also conserve billions of barrels of oil, save consumers money at the pump, increase fuel economy, and reduce millions of tons of greenhouse gas emissions.

 

“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 America’s environment. The vehicles subject to the proposed rules announced today are responsible for almost 60 percent of all U.S. transportation-related greenhouse gas emissions. These will be the nation’s first ever national greenhouse gas standards. The proposed standards would require model year 2016 vehicles to meet an estimated combined average emission level of 250 grams of carbon dioxide per mile under EPA’s greenhouse gas program. The combined EPA and NHTSA standards would reduce carbon dioxide emissions from the light-duty vehicle fleet by about 21 percent in 2030 over the level that would occur in the absence of any new greenhouse gas or fuel economy standards. The greenhouse gas emission reductions this program would bring about are equivalent to the emissions of 42 million cars.

 

Save Consumers Money:

NHTSA and EPA estimate that U.S. consumers who purchase their vehicle outright would save enough in lower fuel costs over the first three years to offset the increases in vehicle costs. Consumers would save more than $3,000 due to fuel savings over the lifetime of a model year 2016 vehicle. 

 

Conserve Oil and Increase Energy Security:

The light-duty vehicles subject to this proposed National Program account for about 40 percent of all U.S. oil consumption. The program will provide important energy security benefits by conserving 1.8 billion barrels of oil, which is twice the amount of oil (crude oil and products) imported in 2008 from the Persian Gulf countries, according to the Department of Energy’s Energy Information Administration Office. These standards also provide important energy security benefits as light-duty vehicles account for about 60 percent of transportation oil use.

 

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/

for NHTSA.

 

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.

     

BNA Green Tax Incentive Teleconference Tomorrow

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:

1. Overview of Available Tax Incentives
   1. Tax Credits
   2. Grants
   3. Depreciation
   4. Deductions
2. Eligibility of Taxpayers To Take Advantage of the Incentives
3. The Energy Production Tax Credit
4. The Energy Investment Tax Credit
5. Electing a Tax-Free Grants In Lieu of Tax Credits
6. Special Depreciation and Deductions

Education Objectives 

Participants will learn how to:

1. Identify the availability of “green” tax incentives for commercial projects
2. Recognize fundamental ideas and solutions available to plan for tax efficient usage or development of renewable energy products
3. 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.
• Affordability. BNA Tax Management audioconferences are inexpensive when compared to the cost of travel to attend conferences with leading experts and practitioners. Plus, you may use a speakerphone and invite as many of your colleagues as you want to listen in -- all for the price of a single registration. See pricing for more details.
• Convenience. No airlines. No travel. No time out of the office.

In addition, you'll receive:

• Personal attention. Once you've registered, send your e-mail questions in advance to mcarrington@bna.com and they will be included in the program. You'll also have a chance to e-mail your questions during the audioconference.
• Conference materials. We’ll e-mail links to the materials that will accompany the audioconference one day in advance. If you do not receive this pre-conference e-mail, e-mail mcarrington@bna.com.

Are Speculators Driving Up Oil Prices?

The Economist published an article Data Diving discussing new data that allows closer analysis of whether speculators are responsible for driving up oil prices.  The short answer according to the speculators is probably not.  And, even if they were, in the Economist's opinion, the critical importance of liquidity overwhelms any effect on higher prices.

The regulatory question is whether the Commodity Futures Trading Commission should limit the positions that speculators such as banks, hedge funds, and others take on oil because of the harmful influence that speculators have on the market.

... whether speculation has really been responsible for spiking prices is a controversial issue. In 2008 the Commodity Futures Trading Commission (CFTC) issued a report dismissing the role of speculators in last year’s startling run-up in prices. But banks, hedge funds and others who bet on oil (without a use for the stuff itself) still face limits on the positions they can take, if Gary Gensler, the new CFTC head, can show that their influence in markets does harm.

New disaggregated data show more clearly the role of speculators in the market:

On September 4th the CFTC added more evidence to the debate by releasing what it said were more transparent data on market positions. Before this month, the CFTC simply classified traders as “commercial” or “non-commercial” in its weekly report on the overall long and short positions in the market. Now it has started to disaggregate them further, into producers and buyers, swap dealers and “managed money”. The third category includes hedge funds.

The new data indicate that speculators (swap dealers and managed money) were long on oil in the week to September 1st, with managed money holding a net long position by more than a 2-to-1 ratio. Those actually involved in the oil business (producers and users) held positions that were net short by similar ratios.  And the swap dealers and managed-money players are bigger in the market, both in terms of the contracts they hold and their own sheer numbers.

So, the speculators constitute the largest amount of the market and they take dramatically opposite positions in the market as compared with producers and users.  Still, the speculators' analysts discount the ability of speculators to affect the market.  I'm not market savvy enough to understand the speculators' analysis proffered by the Economist so would someone out there explain how this tells us that speculators are not influencing the market?

But analysts at Barclays Capital note that long swaps accounted for just 6.4% of total futures and options contracts, not enough to drive prices up on their own. Physical traders held more of the outstanding long positions (10.3%) and held even more short positions. This one set of numbers, in other words, does little to prove that speculators are overriding market fundamentals to drive prices. New quarterly data also released by the CFTC show that money flows to exchange-traded funds (ETFs) in commodities failed to correlate strongly with last year’s price surge.

Maybe some more numbers will help us sort this out (in favor of the speculators):

There are more disclosures to come. The CFTC says it will soon release the newly disaggregated data going back three years. If those numbers, like the quarterly ETF data, are equally unconvincing on the role of speculation, the case for limiting positions will be weakened.

And the Economists' speculator-friendly bottom line:

And a strong counter-argument remains: that speculators provide crucial liquidity. Even if they also have some effect on prices, taking them out of the game could well do more harm than good. It is tempting to look for scapegoats when high prices hurt consumers. But the real culprits for oil-price volatility may be much more familiar: supply, demand and global instability.

Sustainable Fisheries Law

I teach Sustainable Natural Resources Law in the spring.  Here's a new publication brought to my attention by Gerd Winter that looks like a great fit for introducing students to the fisheries area.  A slightly edited summary of the book courtesy of Gerd appears below:

Towards Sustainable Fisheries Law

As most of the fish resources in the world's oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCN
Environmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources.

This publication is a result of an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarizes the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform.

Towards Sustainable Fisheries Law thus helps the reader to learn more about the international legal regime for fisheries management that is currently in place, improves the understanding of the institutional and legal problems related to fisheries management that countries face at the national level, and provides guidance for sustainable use of fish resources through a "legal clinic" for fisheries management.

The book was published as IUCN Environmental Policy and Law Paper No. 74. Free copies can be ordered at the IUCN office or downloaded (2,05 MB) from the IUCN website at: Toward Sustainable Fisheries Law

World Council of Churches Statement on Eco-Justice and Ecological Debt

Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives.  Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt.  In a related, but fascinating, note, the WCC as part of its current  programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line.  This would provide practical spiritual guidance on when, in Christian terms, too much is too much.  Check it out!!!

WCC Statement on eco-justice and ecological debt

02.09.09

The World Council of Churches (WCC) Central Committee adopted a "Statement on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement proposes that Christians have a deep moral obligation to promote ecological justice by addressing our debts to peoples most affected by ecological destruction and to the earth itself. The statement addresses ecological debt and includes hard economic calculations as well as biblical, spiritual, cultural and social dimensions of indebtedness.

 The statement identifies the current unprecedented ecological crises as being created by humans, caused especially by the agro-industrial-economic complex and the culture of the North, characterized by the consumerist lifestyle and the view of development as commensurate with exploitation of the earth's so-called "natural resources". Churches are being called upon to oppose with their prophetic voices such labeling of the holy creation as mere "natural resources".

 The statement points out that it is a debt owed primarily by industrialized countries in the North to countries of the South on account of historical and current resource-plundering, environmental degradation and the dumping of greenhouse gases and toxic wastes.

In its call for action the statement urges WCC member churches to intervene with their governments to drastically reduce greenhouse gas emissions and to adopt a fair and binding deal at the UN climate conference in Copenhagen in December 2009, in order to bring the CO2 levels down to less than 350 parts per million (ppm).

 Additionally the statement calls upon the international community to ensure the transfer of financial resources to countries of the south to refrain from oil drilling in fragile environments. Further on, the statement demands the cancellation of the illegitimate financial debts of the southern countries, especially for the poorest nations as part of social and ecological compensation.

In a 31 August hearing on "ecological debt" during the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from the Quechua community of Peru shared some ways that the global South has been victimized by greed und unfair use of its resources. In the case of Peru, Sumire said mining has had particularly devastating effects, such as relocation, illness, polluted water,and decreasing biodiversity.

 The concept of ecological debt has been shaped to measure the real cost that policies of expansion and globalization have had on developing nations, a debt that some say industrialized nations should repay. Dr Joan Martinez Alier, a professor at the Universidad Autònoma de Barcelona in Spain, said climate change, unequal trade, "bio-piracy", exports of toxic waste and other factors have added to the imbalance, which he called "a kind of war against people around the world, a kind of aggression."

 Martinez went on saying: "I know these are strong words, but this is true." He beseeched those present, at the very least not to increase the existing ecological debt any further.

 The WCC president from Latin America, Rev. Dr Ofelia Ortega of Cuba, said ecological debt was a spiritual issue, not just a moral one. "The Bible is an ecological treatise" from beginning to end, Ortega said. She described care for creation as an "axis" that runs through the word of God. "Our pastoral work in our churches must be radically ecological," she said.

 Full text of the statement

 More on the 31 August hearing on ecological debt

 WCC countdown to climate justice

WCC programme work on poverty, wealth and ecology

More information on the 26 August - 2 September 2009 Central Committee meeting

 

Total emisions approach - accurate but not novel and a flawed basis for policy

As this report on the new studies published in Nature indicates, the global warming problem is and always has been understood to be a matter of the total loadings of GHG emissions in the atmosphere, not a matter of timing.  The timing of the GHG emissions only matters over the course of centuries because eventually greenhouse gases emitted into the atmosphere decompose.  I don't think that anyone familiar with climate policy has ever believed otherwise.  So, on that score the new studies are not new, but they may alter how the problem is conceptualized for policy purposes.

Policy cannot simply divide the total allowable emissions among nations and be done with it.  First, absent intermediate goals tied to deadlines, countries cannot monitor each others compliance with reduction targets.  Second, it creates a tendency for nations to believe that they can just wait until 2050 or whatever when technology will save them and voila they will become carbon neutral.  Our experience in the Clean Air Act attainment with NAAQS was that, faced with a deadline and no requirement for annual progress, states just planned to do something at the last moment and when their plans didn't work, they threw up their hands and said, "OH well." 

We cannot afford to use that model of regulation with respect to climate.  Instead, we need to use technology-forcing technology based standards (e.g. no new coal plants without CSS; CSS retrofit for existing fossil-fuel plants by 2020) along with streamlining the ability of renewables to come online and planning ala the 1990 Clean Air Act amendments with annual progress requirements and contingency measures built into the plan.  Those approaches would be far more successful than the "consume up to the last moment" strategy that may be encouraged by the total emissions approach.

Lawyers have to leave science to the scientists and use extreme care when they are working on a cross-disciplinary basis.  But scientists need to be just as wary of providing policy concepts unencumbered by an understanding of past performance of various regulatory approaches.

From: Naomi Antony, Science and Development Network
Published April 30, 2009 10:40 AM
Scientists put carbon ceiling at a trillion tonnes

Scientists hope a new approach to assessing carbon build-up in the atmosphere will simplify issues
for policymakers and economists. Two papers published in Nature today (29 April) show that the
timings of carbon emissions are not relevant to the debate — it is the total amount of carbon dioxide
emitted over hundreds of years that is the key issue.

Rather than basing negotiations on short-term goals such as emission rates by a given year,
the researchers say the atmosphere can be regarded as a tank of finite size which we must not
overfill if we want to avoid a dangerous temperature rise.

Climate policy has traditionally concentrated on cutting emission rates by a given year, such as
2020 or 2050, without placing these goals within the overall context of needing to limit cumulative
emissions.

Both papers analyse how the world can keep the rise in average surface temperatures
down to no more than two degrees Celsius above pre-industrial levels. This figure is
widely regarded as the threshold beyond which the risk of dangerous climate change
rapidly increases. Policymakers around the world have adopted this limit as a goal.

The first study, led by Myles Allen from the University of Oxford, UK, found that
releasing a total of one trillion tonnes of carbon dioxide into the atmosphere
between 1750 and 2500 would cause a "most likely" peak warming of two degrees
Celsius. Emissions to 2008 have already released half of this. Allen said in a
press briefing this week (27 April): "It took 250 years to burn the
first half trillion tonnes and, on current predictions, we'll burn the next half
trillion in less than 40 years."

The second study, led by Malte Meinshausen at the Potsdam Institute for Climate
Impacts Research, Germany, used a computer model to demonstrate that to avoid
exceeding two degrees Celsius by 2100, cumulative carbon emissions must not exceed
0.9 trillion tonnes. "We have already emitted a third of a trillion in just the past nine years,"
Meinshausen says.

David Frame, a co-author of the Allen paper and researcher at the University of
Oxford, said that these findings make the problem "simpler" than it's often
portrayed. "[The findings] treat these emissions ... as an exhaustible resource. For
economists, this way of looking at the problem will be a huge simplification," Frame
said. "Basically, if you burn a tonne of carbon today, then you can't burn it tomorrow
" you've got a finite stock. It's like a tank that's emptying far too fast
for comfort. If country A burns it, country B can't. It forces everyone to consider
the problem as a whole."

In a separate essay, Stephen Schneider of the Woods Institute for the Environment at
Stanford University in the United States, discusses what a world with 1,000 parts
per million of carbon dioxide in its atmosphere might look like.

This article is reproduced with kind permission of the
Science and Development Network (SciDev.Net).
For more news and articles, visit www.scidev.net.

Nature Abstract of Allen letter:

AAAS Policy Alert

For those of you who try to stay current on science policy, I am a member of AAAS and receive its policy alerts. I encourage all of you to join and subscribe to Science.  Here is today's policy alert:

AAAS Policy Alert -- April 29, 2009 

President Addresses National Academies

President Obama addressed the Annual Meeting of the National Academy of Sciences on April 27 and called for a renewed commitment to basic scientific research and education. During his speech he stated that his goal would be to increase our nation's share of federal investment in research and development (R&D) to 3 percent of gross domestic product (GDP). In recent years, the share has hovered around 2.6 percent of GDP. Furthermore, Obama announced the membership of the President's Council of Advisors for Science and Technology (PCAST). Members include past AAAS President Shirley Ann Jackson of RPI, as well as former Board member Rosina Bierbaum and current AAAS Treasurer David Shaw. They join former AAAS President John Holdren who is both the U.S. President's science advisor and co-chair of PCAST.

Budget News

The House and Senate have nominated the conferees to resolve the differences between their respective versions of the FY 2010 budget resolution. House members include: Budget Committee Chairman John Spratt (D-SC), Ranking Member Paul Ryan (R-WI), and Reps. Allen Boyd (D-FL), Rosa DeLauro (D-CT) and Jeb Hensarling (R-TX). Senate members include Budget Committee Chair Kent Conrad (D-ND), Ranking Member Judd Gregg (R-NH) and Sen. Patty Murray (D-WA). The conferees met today (April 27) to begin deliberating over a consensus document.

Other Congressional News

Congressional Climate Change Update. The House Energy and Commerce Committee held four days of hearings on the American Clean Energy and Security Act, with much debate on the merits of moving ahead on the climate and energy package. Subcommittee markup of the bill has been pushed back to next week, with details such as how to allocate permits to emit greenhouse gases and how the revenues will be used yet to be determined. Meanwhile Senate Environment and Public Works Chairwoman Barbara Boxer (D-CA) announced the formation of five working groups to find compromises in several areas of concern: regional issues, cost containment, targets and timetables, market oversight and coal research and technology. The Senate Foreign Relations Committee heard from Todd Stern, special envoy for climate change at the State Department, who testified on the diplomatic cost of inaction on climate change and emphasized the need for all countries - developed and developing - to engage in negotiations with "common but differentiated responsibilities." Stern is leading the first session of the Major Economies Forum on Energy and Climate on April 27-28, a White House initiative to develop a dialogue among major developed and developing economies on climate change.

New Bill Promotes Science Envoys. Last week, Senator Richard Lugar (R-IN) introduced legislation (S. 838) that recognizes the importance of international scientific cooperation and the work of organizations such as AAAS and the National Academies in this area. The legislation tasks the State Department to appoint Science Envoys to represent our nation and promote international collaboration.

Executive Branch

Presidential Memo on Scientific Integrity. OSTP issued a Presidential Memo on scientific integrity in the April 23 Federal Register and requests public comments on six principles for maintaining and protecting the responsible use of science in decision-making. The memo builds upon a March 9, 2009 memorandum from the President that called on OSTP to issue a set of recommendations within 120 days. OSTP has launched a blog on the subject and is seeking comments on the selection of scientists to serve in the executive branch, peer-review of science used in policy-making, access to scientific data used in policy-making, and whistleblower protection. Comments are due May 13, 2009.

NIH Stem Cell Guidelines Now Open for Comment. The NIH Guidelines for Human Stem Cell Research are now open for public comment until May 26.

NCI Director Speaks on Cancer Plan. National Cancer Institute Director John Niederhuber recently spoke of his institute's plans in the wake of President Obama's cited goal of doubling funds for cancer research. Included would be a boost in the NCI payline to fund more meritorious research grants, as well as more grants to first-time investigators and new faculty researchers. There will also be a focus on personalized cancer care.

EPA Examines Ocean Acidification. On April 14, EPA issued a Federal Register notice requesting information on ocean acidification, the changing of ocean chemistry from increases in carbon dioxide that affects coral reefs and other marine organisms. In response to a lawsuit by the Center for Biological Diversity, EPA is trying to determine whether changes are needed to the water quality criteria under the Clean Water Act. Comments are due June 15, 2009.

Toxics Reporting Tightened. As mandated in the 2009 omnibus appropriations bill, EPA finalized changes to reporting requirements under the Toxics Release Inventory that will take effect July 1. The final rules restore more stringent reporting requirements than those from a Bush-era rule that raised the pollution threshold for reporting. In 2006, AAAS submitted comments stating that the increased threshold would "threaten the ability of researchers to identify and understand potential threats to the environment and public health in a scientifically rigorous manner."

FDA Widens Access to "Morning-After" Pill. The Food and Drug Administration will now allow 17-year-olds to purchase the Plan B "morning-after" pill without a prescription, following a recent federal court order that it do so. The decision has been labeled a "triumph of science over politics" because of widespread concern that the previous administration overruled scientific advice on making the pill available over the counter, leading the FDA's top women's health official, Susan Wood, to resign in protest in 2005.

Nation's First CTO: Clarification. Last week's Policy Alert reported on the President's selection of Aneesh Chopra to be the nation's first chief technology officer. It has since been reported that the CTO will also be one of the associate directors of the Office of Science and Technology Policy (OSTP) concerned with overall technology policy and innovation strategies across federal departments. Chopra's position (which is subject to Senate confirmation) should not be confused with that of Vivek Kundra, recently named Chief Information Officer, who is located in the Office of Management and Budget (OMB), overseeing day-to-day information technology spending and interagency operations.

Elsewhere

Climate Risk Report Released. Led by the Heinz Center and CERES, a coalition of insurance, government, environmental, and investment organizations released a report, Resilient Coasts: A Blueprint for Action that listed steps the nation can take to drastically reduce rising coastal hazard risks and their associated economic impacts.

Texas School Board Chairman Up for Confirmation. Texas State Board of Education Chairman Don McLeroy, a vocal opponent of teaching evolution, is up for Senate confirmation by the state Senate, and during a recent hearing some members of the Senate Nominations Committee expressed dissatisfaction with McLeroy's performance. One state senator said McLeroy has "created a hornet's nest" and noted that 15 bills filed during this legislative session would strip powers from the state school board. Even if McLeroy is not confirmed as chairman, he will still remain a member of the board. In other news, the Institute for Creation Research is now suing in U.S. District Court over the Texas Higher Education Coordinating Board's decision to deny its request to offer a master's degree in science education.

Animal Rights Activists Charged. Two animal rights activists have been arraigned on charges of conspiracy, stalking and other crimes, including attempted fire-bombing, against UCLA scientists engaged in animal research.

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Publisher: Alan I. Leshner
Editor: Joanne Carney
Contributors: Erin Heath, Earl Lane, Steve Nelson, Al Teich, Kasey White

NOTE: The AAAS Policy Alert is a newsletter provided to AAAS Members to inform them of developments in science and technology policy that may be of interest.  Information in the Policy Alert is gathered from published news reports, unpublished documents, and personal communications.  Although the information contained in this newsletter is regarded as reliable, it is provided only for the convenience and  private use of our members.  Comments and suggestions regarding the Policy Alert are welcome.  Please write to alert@aaas.org.