Tuesday, September 17, 2013

Greetings and Welcome!

Many thanks to Blake Hudson for inviting me to join the Environmental Law Profs blogging crew for the next few months. As many of you already know 2 or 3 of you may know, I blog regularly (err... lately maybe irregularly is the better term) over at Land Use Profs. I love the land use gang, but often feel like a bit of interloper because of my lack of land use cred. I plan to continue my blogging there but hope to use this forum to discuss intriguing issues that don't fall as squarely into the land use box.

I'd like to take this chance in my first post, however, to welcome all the new environmental law professors joining our ranks this year. Last year, Kalyani Robbins worked with a research assistant to gather information about environmental law professors across the United States. While Kalyani and I never quite got around to writing the article that we planned regarding the results, one remarkable thing was clear -- there are a lot more environmental law professors out there than people realize. Moreover, there is a big category of untenured folk. The research identified 510 environmental law professors, with 101 untentured tenure-track faculty. This number does not include those junior scholars out there who have not yet entered the tenure track, like folks currently on the market, people working as VAPs, fellows, etc. One of the things we realized during our research and discussions into these issues, is that many of these junior scholars toil away in solitude -- not always having funding to travel to conferences or having good guidance about making connections and finding colleagues. 

In an attempt to at least create some virtual connections, a few of us created a listserv for junior environmental law and land use scholars (plus we have some property and indian law folk chiming in periodically). This smallish community can serve as a good sounding board for silly questions, arranging meet ups at conferences, and getting to know each other. It is not a replacement in any way of the superior (and much larger) listserv managed by John Bonine (if you are an environmental law scholar and not on that listserv, you should get on it -- email John). I think I was teaching for a year before I even knew about that listserv...

Anyhoo.... at the beginning of this new school year, I would like to invite junior faculty (and faculty hopefuls) to join our list by dropping me a line (jol@buffalo.edu). If you have a junior environmental law person at your school,  take a minute to point them to these listservs (and this blog! I think I was teaching for a year before I even knew about John Bonine's listserv.

For those of you with tenure, consider volunteering to read a junior paper or two each year. To facilitate these paper exchanges (which we run through the listserv), simply fill out this survey.


Jessie Owley


September 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Getting to 3.2% in Fracking

The New York Times today reported potentially encouraging news from a collaborative study out of the University of Texas:  methane leakage rates from hydraulically fractured shale gas wells might be lower than previously estimated EPA rates.  The study emerged from a combined effort of gas companies, the Environmental Defense Fund, an independent Scientific Advisory Panel, and academics.  It finds that methane emissions from the flowback process--when hydraulic fracturing fluid and some gas (methane) flows back out of the well--range from 0.1 Mg to 17 Mg (with a mean of 1.7 Mg of methane released and "75% confidence bounds of 0.67-3.3 Mg"), as compared to previous EPA estimates of an average of 81 Mg per flowback event.  Emissions from pumps and other equipment at well sites, on the other hand, are "comparable to and higher than" EPA estimates.  In total, methane emissions from activities at the wellhead might represent "0.42% of gross gas production."  These findings are important because organizations like EDF believe that methane leakage rates from the rapidly-growing shale gas resource must be 3.2% or lower for gas to provide a climate advantage over new coal-fired power plants. 

But we are not out of the weeds yet.  This EDF, university, and industry-led study is only one of approximately 16 studies planned to be published in academic journals by 2014, and the study only addresses leakage at the wellhead.  The amount of methane leakage through the entire natural gas system, from production to "gathering & processing, long distance transmission & storage, local distribution, and transportation," is still a murky number.

In addition to lacking definitive evidence that system-wide methane leakage is below 3.2%, we also must understand the limitations of the wellhead study.  The study makes excellent progress within the methane leakage debate because it measures actual leakage rates from "150 production sites, 27 well completion flowbacks, 9 well unloadings, and 4 workovers," including 489 hydraulically fractured wells in several regions.   But as with any study that must rely on industry cooperation to access data, there is a concern that the researchers measured industry best practices.  It is possible, in other words, that the industry actors most willing to participate in the study were those that already used the best methane capture technology and practices and were least worried about the results.  Indeed, the study notes that the "dataset is designed to be representative of the participating companies' activities and practices, but not necessarily all activities and practices."

It is not yet clear that the EPA-estimated 25,000 wells fractured or refractured each year use methane capture practices as beneficial as the 489 hydraulically fractured wells in the study.  The authors of the Texas-led study indicate that "[m]ultiple methods were used to minimize the potential for bias in the sample set," and they provide a detailed appendix of the study scope and method.  The appendix indicates that "[r]epresentative sampling was believed to be achieved by: [s]electing a large number of companies, [s]electing a range of geographic areas to sample," and "[s]electing [a] minimum number of sampling targets in each area." But the appendix shows that the nine mid-size and large companies that participated in the study "account for almost 12% of all U.S. gas wells," "16% of gross gas production," and "almost half of the new well completions." Although this represents a sizeable chunk of industry, it might also represent the most cooperative and progressive chunk.   There is some indication that not all companies are amenable to the types of methane capture practices used by these companies.  The American Petroleum Institute has complained about the costs of new EPA Clean Air Act rules that will require methane capture or flaring (burning off of gas) similar to the practices used at the 489 wells studied by the University of Texas team.  It worries that the "reduced emissions completion" (REC) technologies necessary to achieve this capture rate will not be available in the numbers needed and will slow down drilling and fracturing. 

We also need to think about the broader climate impacts of gas, as noted by Patrick Parenteau & Abigail Barnes and others. Although we know that the displacement of coal with gas has benefits far beyond (apparent) greenhouse gas reductions, there is the broader threat of what the Natural Resources Defense Council calls a "fossil fuel lock-in" (link is to video archives of a National Research Council presentation by Kate Sinding of NRDC).  The existence of abundant, cheap natural gas threatens to distract us from implementing energy efficiency and renewable energy projects at a rapid rate.  MIT researchers have noted that the focus on gas slows down and in some cases stops innovation in areas like carbon capture and sequestration, and the International Energy Agency reminds us that gas is not enough to meet climate goals like stabilizing global temperature rise to 2 degrees Celsius.  To make real progress on climate issues, we must rapidly invest in fossil fuel alternatives while continuing to achieve systemwide reductions in methane leakage from gas operations.  

-Hannah Wiseman

September 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Welcoming Guest Blogger Jessica Owley

It is our pleasure to welcome Jessie Owley as a guest editor on Environmental Law Prof Blog. 1346279906662
Below is a snippet from her faculty page. Welcome Jessie! 

Jessica Owley teaches environmental law, property and land conservation. She joined the SUNY Buffalo Law in 2010 after serving as an assistant professor at Pace Law School. She received her Ph.D. in environmental science, policy and management from the University of California-Berkeley in 2005, shortly after completing her J.D. at Berkeley Law in 2004.

Before entering academia, Owley practiced in the Land Use and Environment Law group at Morrison & Foerster in San Francisco. Prior to private practice, Owley clerked for Hon. Harry Pregerson of the Ninth Circuit Court of Appeals and Hon. Dean D. Pregerson of the Central District of California. Owley is a member of the California bar and admitted to practice in the Northern, Southern and Eastern districts of California and the Ninth Circuit.

Owley's teaching interests are in the areas of property, environmental law, administrative law and Indian law. Though her general research is on land conservation and property rights, her current scholarship focuses on using property tools for conservation in the context of climate change.

- Blake Hudson

September 12, 2013 | Permalink | TrackBack (0)

Wednesday, September 11, 2013

University of Montana School of Law Tenure-Track Position in Property Law

From the University:

The University of Montana School of Law invites applications for tenure-track Assistant or Associate Professor of Law position teaching Property Law.  The position is a ten-month contract beginning fall semester 2014.  To view full job descriptions, minimum requirements needed, and to apply, go to http://university-montana-hr.silkroad.com/epostings/ADA/EOE/AA/Veterans Preference.

- Blake Hudson

September 11, 2013 | Permalink | TrackBack (0)

GHG Trading and Co-Pollutants: Expanding the Focus

I agree with Dave Owen’s recent post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities.  He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots.  Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.

I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels.  Even if a GHG trading program would not cause an industrial hotspot – would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.

I start by acknowledging Adelman’s valuable insights about industry’s relative role in air toxics pollution.  Because Adelman’s concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry’s absolute and relative contribution to air toxics pollution.  He defines a county-wide industrial hotspot by industry’s absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million.  He defines a census tract industrial hotspot where industry’s absolute contribution to cancer risk exceeds 20 per million and industry’s relative contribution is at least 30% of total air toxics emissions.  Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics.  Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions.  But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.)

Adelman demonstrates that the paucity of industrial toxic hotspots has important implications for GHG trading programs.  First, because mobile and nonpoint sources dominate air toxics pollution in most of the country, GHG trading is unlikely to cause large percentage shifts in communities’ exposure to air toxics.  As Adelman notes (and Dave Owen’s recent blog post highlighted), if industry contributes 10 percent of a locality’s toxic emissions and a GHG emissions program requires a 20 percent emissions reduction, then imposing that reduction requirement directly on the local industries would garner only a 2 percent reduction in toxic emissions.  Thus, a GHG trading program that lets facilities purchase allowances instead of reducing emissions would forego only a 2 percent reduction in local toxic emissions.

A second valuable insight about industry’s limited relative role is that, in most instances, GHG trading is unlikely to increase racial inequities in air toxics exposure. That stems, in part, from industry’s relatively minor contribution to cumulative air toxic risks.  Because trading is unlikely to substantially affect relative levels of air toxics cancer risks, it is unlikely to substantially shift the racial distribution of exposures.  And in the small number of census tracts where industrial emissions do play a substantial role in air toxics risks, he observes that the racial disparities are slight, so that a GHG trading program’s emissions patterns would not lead to increased racial inequities in risk distribution.

Adelman’s analysis addresses key environmental justice concerns about distributional equity.  The analysis does not, however, address one additional issue that is also important to the debate about GHG trading program’s and toxic hotspots: the significance of co-pollutant reductions on absolute pollution levels, even if industrial emissions are not the dominant source of emissions and the trading program would not lead to large percentage shifts in air toxics levels. In other words, one additional issue to consider is the importance of any reductions – even small reductions – in severely polluted areas. In highly polluted areas, the concern is not just whether trading will cause hotspots, but whether trading will eliminate opportunities to achieve incremental reductions in serious cumulative harms.

To identify areas where GHG trading could potentially make a significant difference in toxic emissions and, therefore, affect the relative distribution of pollution, Adelman rightly focuses on industrial hotspots: the counties and census tracts where industrial emissions most affect air toxics levels.  As he notes, however, the focus on industrial hotspots does not correspond to toxic hotspots more broadly, since the nation’s most toxic hotspots are primarily caused by mobile and nonpoint sources, not industrial sources.   He observes that, because “large populations and high population densities” generate high air toxics emissions from mobile and nonpoint sources, they “all but foreclose the emergence of industrial hotspots in metropolitan areas where the cancer risks from air toxics are typically the highest.” (322)  Industrial hotspots typically appear only in places that combine highly toxic industries (generating significant industrial emissions) with small, low density, populations that generate relatively few mobile and small point source emissions. 

Therefore, although assessing a GHG trading program’s impacts on industrial hotspots tells us where a GHG trading program covering industrial sources could have the biggest percentage impact on air toxics emissions, that analysis does not address a trading program’s impacts on areas experiencing the highest levels of air toxics pollution.  To assess the value of achieving co-pollutant reductions, it is important to consider not only the percentage reductions that could be achieved or the distributional equity implications of those reductions, but also the importance of achieving reductions in absolute levels of pollution.

To see this more clearly, imagine two census tracts.  Tract 1 is in a rural, low-density, region.  A steel mill there poses a cancer risk of 20 per million and contributes 50 percent of the census tract’s overall air toxics risk of 40 per million.  Under Adelman’s analysis, Tract 1 would qualify as an industrial hotspot because industrial sources pose a risk of at least 20 per million and industrial sources contribute more than 30 percent of the tract’s overall air toxics risk.  If a GHG reduction program required a 20 percent decrease in emissions, and facilities in that area chose to purchase allowances rather than reduce emissions, then that area would forego reducing cancer risks by 4 per million, forgoing a 10 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 10 percent reduction is calculated as follows: A 20 percent reduction of the 20 per million cancer risk would lead to a reduction in risk of 4 per million.  Reducing Tract 1’s air toxics risk from 40 per million to 36 per million is a 10 percent overall reduction in risk.  Note that, for purposes of explanation, this example is highly simplified and likely exaggerated; it assumes that a facility would purchase allowances rather than reduce emissions and that GHG and co-pollutant emissions are perfectly correlated.)

In contrast, assume Tract 2 is in a dense urban environment that more closely resembles Los Angeles than Tract 1’s rural character.  Assume several industries pose a cancer risk of 10 per million and contribute 10 percent of the census tract’s overall air toxic risk of 100 per million; the other 90 percent of the air toxics risk stems from mobile and nonpoint sources. Tract 2 would not qualify as an “industrial hotspot” under Adelman’s definition because industry contributes less than 20 per million to the overall cancer risk and because industry contributes less than 30 percent to the tract’s overall risk level.  Assuming a twenty percent GHG reduction requirement in Tract 2, and assuming that local industries purchased allowances rather than reducing emissions, Tract 2 would forego reducing cancer risks by 2 per million, foregoing a 2 percent reduction in cumulative air toxics pollution that could otherwise have been achieved.  (The 2 percent reduction is calculated as follows: A 20 percent reduction of the 10 per million cancer risk could reduce air toxic risks by 2 per million.  Reducing Tract 2’s air toxics risk from 100 per million to 98 per million is a 2 percent overall reduction in risk.)

Adelman’s analysis of industrial hotspots helps us see that a GHG trading program could make the most relative difference in associated air toxics emissions in Tract 1 because there it could cause Tract 1 to forego a 10 percent emissions reduction, whereas in Tract 2, where industrial emissions are a smaller component of overall emissions, the trading program would cause Tract 2 to forego only a 2 percent reduction.  In Tract 1, there is a greater possibility that the foregone reductions could change that tract’s degree of air toxics pollution relative to other areas, and cause racial inequities to the degree Tract 1 is located in a disproportionately minority area.

These insights address key equity questions, as measured by relative pollution levels.  But a trading program’s role in alleviating absolute pollution levels, not just its impact on relative pollution levels, is also relevant to the discussion of GHG trading and hotspots. The cumulative toxics risk in Tract 2 is 100 per million, substantially more than the 40 per million in Tract 1.  Of course, reductions in both tracts are important, but the 2 percent reduction in Tract 2 could be as or more important than the 10 percent reduction in Tract 1.  Though the smaller percentage reduction in Tract 2 will not strongly affect relative pollution levels and is unlikely to change distributional equity, the reduction could be more important to the impacted communities in Tract 2 than in Tract 1.  The difference in Tract 2 (reducing the cancer risk from 100 to 98 per million) might be less dramatic than in Tract 1 (reducing the cancer risk from 40 to 36 per million), but arguably the need for reductions is greater in Tract 2 than in Tract 1.

Wherever harm is caused by cumulative sources, incremental reductions from any one source, particularly a smaller source, will not lead to substantial changes in overall emissions. But one factor in considering the importance of the reduction is the extent of the need for the reduction, not only the relative change in emissions or its impact on distributional equity.  Residents subject to multiple sources of pollution hope for reductions from all sources, even if the reductions achieved by any one source cannot, by definition, solve the entire problem.  The presence of high emissions from mobile and nonpoint sources should not minimize the value of industrial emission reductions in the most seriously polluted areas.

A focus on the impacts of trading on industrial hotspots provides important insights that contribute substantially to the debate about GHG trading and hotspots, but its limits in fully resolving that debate are revealed by the article’s suggested regulatory fix.  In order to mitigate the risk that a GHG trading program could lead to significant shifts in relative pollution in the limited numbers of industrial hotspots he has identified (most of which are rural, low-density communities where a single industry causes most of the air toxics pollution), he identifies modifications to a cap-and-trade program to reduce the risk of adverse shifts in emissions.  His suggested solution addresses the role of a GHG trading program in causing industrial hotspots.  But it does not address the impact of trading on toxic hotspots that are not primarily caused by industry.  If we are going to modify a GHG emissions trading program to address co-pollutant consequences, should that effort be focused on these areas, rather than the areas experiencing more intense air toxics pollution?  True, protections in industrial hotspots are likely to have a greater relative impact on pollution than they would in areas suffering from many sources of pollution.  But it’s not clear that this approach would target improvement where it’s most needed.

To be clear: I am not suggesting that a GHG trading program or carbon tax should not be adopted because of its co-pollutant drawbacks relative to more direct regulatory measures.  This dialogue concerns only the distributional impact of GHG trading on co-pollutants.  As I have written elsewhere, a full analysis of a trading program’s co-pollutant implications must also consider other dimensions to the choice between market-based and traditional regulation, including relative stringency, relative flexibility, enforceability, participatory opportunities, and other factors, some of which might (or might not) provide counterveiling co-pollutant benefits.  In addition, other benefits of a GHG trading program or carbon tax could potentially outweigh the co-pollutant considerations articulated here.  And, if politically viable (a big “if”), more aggressive efforts to reduce mobile and nonpoint air toxics could be more effective than attempting to achieve co-pollutant reductions through a GHG trading program, particularly if that effort were to adversely impact the viability of GHG control efforts.  I write, instead, simply to add another dimension to the discrete debate about GHG trading and air toxic hotspots: a trading program’s impact on cumulative pollution in the nation’s most polluted areas.

- Alice Kaswan

September 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, September 9, 2013

Christians and Climate Change: Lessons From Noah's Ark

This weekend, as I was driving back from a trip out of town, I had to turn around and take a picture of this church sign in Dumas, Arkansas:

Noah's Ark

I thought this was quite a salient metaphor for the most likely impending environmental disaster of our time, climate change. People thought Noah was crazy for building the Ark - for preparing for the worst case scenario that he felt pretty sure was coming. "Does it look like it's raining to you?" they said (paraphrasing). "Come on, a flood? That will wipe out society? No way that is going to happen" they said. And then the flood came. 

I would quip that one of Rush Limbaugh's ancestors would have been among those who said these things to Noah, but since everyone but Noah's family was wiped out, I suppose that is impossible. But recently, two evangelical climate scientists (Katharine Hayhoe from Texas Tech and Thomas Ackerman from Washington) called out Rush Limbaugh for spreading the idea that faith and science are irreconcilable. They were responding to Limbaugh's recent comment on his show that "If you believe in God, then intellectually you cannot believe in man-made global warming." The scientists stated that:

"Rush's uninformed rhetoric is demeaning to Christians who care deeply about what humans are doing to God's Creation and ignorant of the consequences that future generations will face if we don't respond quickly to the challenge of climate change."

They made a number of other sound biblical arguments supporting environmental protection, and noted that: 

"While our expertise allows us to understand the complexity of a changing climate and its causes, it is our faith that compels us to speak out and motivates us to push forward despite the opposition from voices like Rush Limbaugh and gridlock in Washington...We were appalled at the ignorance behind Rush Limbaugh's statement but we weren't surprised . . . This isn't meant to invoke pity, but rather to highlight the absurdity of our public debate around faith and climate change. Rush Limbaugh has a very big megaphone but no expertise or formal credentials to be considered an expert on the changes in climate occurring all around us. He has no theological training or record of leadership within a faith community. He's simply a radio show host willing to say controversial things, regardless of whether they are true or not."

I couldn't agree more with Dr.'s Hayhoe and Ackerman. But when I saw this church sign, it reminded me of the arguments that climate skeptics put forth seemingly based upon not being able to see today the full effects of the precipitous amounts of carbon that we have pumped into the atmosphere over the last 150 years (or based on fundamental misunderstandings of climate science: "it was a record low in Charlotte, North Carolina today. Global warming? Yea right!"). It wasn't raining when Noah built the Ark, but in an exercise of some Old Testament precautionary principle, Noah built his Ark anyway. In the same way, we can model with a high degree of certainty the impacts of increasing carbon concentrations in the atmosphere at the rate that humans have. We should take precautionary action accordingly, even if - and especially if - it is only future generations that will bear the full brunt of climate change's effects. 

The Bible is replete with mandates to protect future generations. In rejecting the basic science of climate change, or even the science of the environment more generally - and our dependence upon it - far too many conservative christians are in the business of maximizing their short-term welfare to the detriment of their children's children. Noah didn't do that. He invested (his detractors would say "wasted") a lot of money and time in building the Ark. He incurred a short term economic cost in order to preserve his children's future. Christians would be wise to do the same - it is after all, a mandate of the Bible.

"Increased hurricane frequency and intensity? Yea right. Miami and New York City under water? That can't happen. Economy crumbling because society cannot adapt as quickly as the climate is changing? You're crazy." But it wasn't raining when Noah built the Ark.

- Blake Hudson

September 9, 2013 | Permalink | Comments (2) | TrackBack (0)

Sunday, September 8, 2013

Bike Sharing

The City of Forth Worth embarked on an ambitious bike sharing plan last April with the assistance of a $1 million federal grant.  Just last month, it received another grant--- this one for $550,000 from the Texas Department of Transportation---to expand the program. 

While praised here in Fort Worth (and in many other cities) as (1) an extension of bus and rail systems and (2) inspiring a sense of community, noted property scholar Stephen Clowney (Kentucky) over at Property Prof Blog is one of several commentators who have critiqued such programs on efficiency grounds (see, e.g., here and here). 

The Portland (OR) Bureau of Transportation website includes an information page titled "What We Have Learned from Other Cities."  The page includes a list and the basic parameters of existing bike share programs in the U.S.

-Tim Mulvaney (tmulvaney@tamu.law.edu)

September 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

From Texas: Attempting to Deal Rationally with Limited Water Supplies is a Regulatory "Taking" of Private Water Rights

The Texas courts are once again refining their description of private water rights. On Wednesday (August 28, 2013), the Texas Court of Appeals in San Antonio confirmed that implementation of the Edwards Aquifer Act resulted in a constitutional "taking" of landowners' property rights in groundwater. Edwards Aquifer Authority v. Bragg, --- S.W.3d ---, 2013 WL 4535935 (Tex. App.--San Antonio Aug. 28, 2013). More disturbing than the actual decision, however, is its implications for state authorities trying to deal rationally with increasing water shortages.

Some background is in order, because EAA v. Bragg is the first application of the Texas Supreme Court's 2012 decision that overlying landowners in Texas own groundwater in situ. Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012). Many of us who teach Water Law would argue that EAA v. Day represented a radical departure from both traditional Texas groundwater law, which uses the English rule of capture, and the Edward Aquifer Act's possible creation of a correlative rights-type regime for the Edwards Aquifer. But hey, I'm not the Texas Supreme Court.

The Edwards Aquifer Act has a long and litigious history. The Texas Legislature enacted the Act in 1993 in response to increasing drought threats and Endangered Species Act litigation seeking to protect five listed species living (or trying to live) in the Edwards Aquifer. The Act created the Edwards Aquifer Authority and mandated a permit regime to limit withdrawals from the aquifer. As the Texas Court of Appeals explained in EAA v. Bragg, "In the Act, the Legislature established an aquifer-wide cap on water withdrawals by nonexempt wells of 450,000 acre-feet of water per year through 2007 and 400,000 acre-feet per year thereafter." 2013 WL 4535935, at *2. Moreover, "Under the Act, the Authority may grant initial regular permits ('IRPs') only to existing users who properly file a “declaration of historical use,” and who can establish, by “convincing evidence,” beneficial use of underground water withdrawn between June 1, 1972, and May 31, 1993." Id.

The Braggs own two properties overlying the Edwards Aquifer that are commercial pecan orchards. They have irrigated the pecan trees with two wells drawing water from the Edwards Aquifer, one drilled in 1980 and one drilled in 1995 as authorized by a permit from the Medina County Groundwater Conservation District. The EAA was not yet issuing permits; because of lawsuits, the Act did not become effective until 1996.

When the Braggs applied to the EAA for permits in 1996, they claimed withdrawals of 228.85 acre-feet of water per year from the 1980 well and 193.12 acre-feet of water per year from the 1995 well. Their permit authorized 120.2 acre-feet of water per yeard from the 1980 well and nothing from the 1995 well, the use of which was outside the historic period that the EAA could consider under the Act. The Braggs sued the EAA in November 2006, alleging a constitutional taking of private property and a violation of federal civil rights. The state trial court found in their favor, concluding that no physical taking of their water rights had occurred but that nevertheless both the denial of water rights from the 1995 well and the reduction in water rights from the 1980 well constituted regulatory takings that required compensation.

The Texas Court of Appeals affirmed the takings liability but remanded  for a re-calculation of the damages. First, it found that the EAA (as opposed to the State of Texas) was the proper defendant. Id. at *8. Second, it found that the statute of limitations was 10 years, id. at *10, and had not run because it did not accrue until the EAA acted on the Braggs' permit applications in 2004 and 2005. Id. at *13.

Third, with regard to the regulatory taking, the Texas Court of Appeals relied heavily on EAA v. Day, making short shrift of the EAA's argument "that the Act gave the Braggs something they did not previously own (permits) and, therefore, there is no taking . . . ." Id. at *14. With regard to the economic impact of the permit decisions (the first Penn Central factor for in the standard regulatory takings analysis), the court concluded that:

To reduce their water consumption, the Braggs reduced the number of trees by thirty to fifty percent and reduced the watering of the remaining trees. This, in turn, resulted in the Braggs' inability to raise a commercially viable crop on their properties, unless they purchased or leased water under the permit scheme. Despite what might amount to only a ten percent increase in their irrigation expense, we do not consider this merely an incidental diminution in value. The result of the regulation forces the Braggs to purchase or lease what they had prior to the regulation—an unrestricted right to the use of the water beneath their land.

Id. at *17.

With respect to the Braggs' investment-backed expectations, the court emphasized that they purchased both properties as pecan orchards before the Texas Legislative enacted the Edwards Aquifer Act. As a result, "Although the Braggs had no reasonable investment-backed expectation that there would never be a regulatory scheme in place that might govern their use of the water beneath their land, the lack of such regulations when they purchased both orchards shaped their expectation that they would have unrestricted use of their water to supply the needs of their pecan trees." Id. at *19. Moreover, "considering Mr. Bragg's extensive understanding of pecan crops, the Braggs' understanding that they owned the water under their land, and that no regulatory entity existed that governed the use of their water when they purchased the property as an existing pecan orchard, we conclude the Braggs' investment-backed expectations as to the D'Hanis Orchard were reasonable." Id. at *20.

Finally, with respect to the character of the government action, the Texas Court of Appeals acknowledged that groundwater regulation is a legitimate government purpose and that "[o]ne purpose of groundwater regulation is to afford each owner of water in a common, subsurface reservoir a fair share of the water." Id. Nevertheless, while this factor thus counted against finding a taking, the court emphasized the surrounding circumstances (i.e., drought) to conclude, on balance, that a regulatory taking had in fact occurred:

In this case, the Braggs' business is agricultural and therefore heavily dependent on water. The particular crop cultivated by the Braggs, pecans, needs water year-round. The Braggs' source of water is either sub-surface or rain. Rain, at least in drought-ridden Texas, is inconsistent and unpredictable. . . . This is especially so in semi-arid Medina County, Texas. Mr. Bragg's testimony established that a lack of sufficient water not only effects the yield of the current crop but also the quality and size of the pecans in a future crop. No expert disputed that rain alone could not provide a sufficient source of water. Therefore, we conclude the Act's restrictions on the amount of water the Braggs could draw from their own wells weighs in favor of a compensable taking. 

Id. at *21.

With this declaration, I submit, the Texas Court of Appeals both has attempted to elevate historical water rights over new ecological realities and created a major legal impediment for any government entity trying to rationally address changing--especially declining--water resources. Endangered species or not, government regulation or not, overpumping the Edwards Aquifer and increasing droughts in Texas will eventually destroy the value of all private property claims to water (and maybe the value of all private property, period) in many parts of Texas. Instead of encouraging the Texas Legislature and the EAA to deal rationally with these new realities--including the reality that there just isn't enough water for everyone to do everything they want for the rest of their lives--the Texas courts have effectively forced the EAA to assume all costs of attempting to ameliorate the shortage. 

Should the State of Texas or EAA callously let the Edwards Aquifer go dry? I'd like to argue "no"--but I don't think it should have to pay landowners who rush headlong into that disastrous result, either. Constitutional "takings" clauses need to accommodate changing ecological realities and the tragedy of the commons, or they will just make those tragedies worse. At one point, the common law recognized this hard reality through the doctrine of public necessity and police power defenses to takings liability, but those limitations on "takings" liability seem to have been forgotten.

So, the question we should all be contemplating: When does groundwater pumping become a public nuisance, or create a public emergency?

--Robin Kundis Craig, William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law

August 30, 2013 | Permalink | Comments (4) | TrackBack (0)

Thursday, August 29, 2013

Bragg, Takings, and the Economics of Limited Resources

Yesterday the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838).  The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority’s regulatory restrictions on the Braggs’ groundwater use amounted to a regulatory taking.  The appellate court agreed and remanded for an assessment of damages.  But I suspect—and hope—the case will first be appealed to the Texas Supreme Court.  It is a deeply flawed and harmful decision with mistakes that additional appellate review hopefully will fix.

Understanding those problems requires a little bit of factual context.  The Edwards Aquifer is a large and highly productive aquifer in central Texas.  It provides an important source of water for municipal and agricultural users, and its discharges support vibrant ecosystems, several of which contain unique and threatened or endangered species.  But those competing uses came into stark conflict, and in the mid-1990s the Texas Legislature responded by creating the Edwards Aquifer Authority and charging it with regulating water withdrawals (for articles on that history, see here and here). 

In 1979 and 1983, years before the Edwards Aquifer Authority’s regulatory scheme went into effect, the Braggs bought two parcels of land with the intention of growing pecans.  Initially, their water needs were modest; young pecan trees are small and do not require much water.  But as the trees grew, the Braggs sought regulatory authorization to increase their water use.  The Edwards Aquifer Authority authorized a lower level of use than the Braggs wanted (according to the Braggs, the limits rendered their farming operation economically inoperable), and the Braggs sued, alleging a taking.  The trial court ruled in their favor, and the current appeal followed.

Before getting to the problems with the court’s decision, it’s worth noting a few things the court did right.  First, the court analyzed the Bragg’s claims using the regulatory takings analytical framework set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).  The appropriateness of that analytical framework for this case might seem obvious, but in recent years some takings advocates have argued—on rare occasions successfully—that regulatory restrictions on water rights should be analyzed as potential physical takings.  The Bragg court appropriately avoided that path.  Additionally, I have no quibble with the court’s application of the nature-of-the-government-action prong of the Penn Central analysis.  The court wrote that “[g]iven the importance of ‘protecting terrestrial and aquatic life, domestic and municipal water suppliers, the operation of existing industries, and economic development of the state,’ we conclude this factor weighs heavily against a finding of a compensable taking.”  That seems rather sensible.

But the Edwards Aquifer Authority still lost.  That’s primarily because of the court’s application of the other two Penn Central factors—the diminution in value and the interference with reasonable investment-backed expectations—both of which the court found weighed in favor of the Braggs.  And it reached both findings largely because of a consistent and deeply flawed reason: in applying each factor, it simply assumed away the reality that the Edwards Aquifer is a limited, oversubscribed resource.

The court's diminution in value analysis illustrates that problem.  That analysis reduces to a mathematical problem: the court’s job is to ask what the value of the property would have been without the contested restriction and what the value was with the restriction.  The court purported to do that, but instead its denominator was the value of the property assuming the viability of the Braggs’ desired property use.  In other words, the court simply assumed that without the restriction in question, the Braggs would have been able to use as much water as they wanted.  When the time came to instruct the lower court on a damages formula, the court of appeals said the same thing: “we conclude that the ‘property’ actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard.”  But even if the regulation had not existed, there was no guarantee that the Braggs could have withdrawn as much water as they wanted (unless, of course, the Braggs were the only landowners exempted from the Authority's regulatory scheme).  The Edwards Aquifer does not have unlimited quantities of water, and the Braggs would have been in competition with every other user whose pumping might affect water levels beneath the Braggs’ land.  In that competition, they might well have fared worse than they did under the EAA’s scheme, and at the very least they would have confronted greater uncertainty.   Thus a more appropriate denominator would have been the value of the Bragg’s land in a legal environment of unfettered competition for a limited resource, with all the uncertainty and risk that entails. 

The same problem applies to the court’s analysis of reasonable investment-backed expectations.  Essentially, the court held that it was reasonable for the Braggs to invest in a large, water-intensive, long-term farming operation in reliance on pumping from a shared and strained aquifer.  That does not seem like something a wise business owner would do, or that law should encourage businesses to do.  Granted, at the time, no regulatory restriction limited their pumping, but that cuts both ways: it meant less reason to anticipate governmental restriction but also less reason to anticipate governmental protection from competing users.  And even by the late 1970s and early 1980s, any reasonable expectation ought to have factored in the possibility that environmentally valuable resources would receive government protection.  Yet the court’s analysis of reasonable investment-backed expectations  discounts any factor other than the Bragg’s unilateral expectation that they would be able to pump whatever they needed.

The consequences of these errors are serious and far-reaching.  A simplified hypothetical illustrates the problem.  Suppose that 10 farmers own land above an aquifer with a sustainable annual yield of 1000 acre-feet of water.  Suppose that each landowner wants to create a pecan farm, and each anticipates that the pecan farm, at maturity, will require 200 acre-feet of water per year.  And suppose a regulatory body instead restricts each landowner to an equivalent share of the aquifer, so each instead receives 100 acre-feet per year.  Under the valuation formula propounded by the Braggs and adopted by the court, each landowner has suffered a substantial diminution in value, and therefore could be entitled to takings compensation for a “lost” 100 acre-feet/year of water, even though all the regulator did was restrict their collective use to the amount of water actually available.  If each landowners sues—and with this formula, they would be fools not to—the regulator will wind up paying compensation for “taking” 1,000 acre-feet/year of water that the aquifer never could have sustainably supplied anyway.  On a larger and more complicated scale, that essentially is the reality of the Edwards Aquifer, and of a great many other aquifers—a fact that was not lost on the Texas Legislature when it passed the Edwards Aquifer Act.  But that reality seems to have eluded the court.

To all of this, some readers might have a response: weren’t the court’s hands tied by Edwards Aquifer v. Day, 369 S.W.3d 814 (Tex. 2012)?  In Day, the Texas Supreme Court held that landowners hold property rights in water beneath their land, and that restrictions on those water rights could create compensable takings.  But that holding doesn’t inexorably lead to kind of analysis the Bragg court used.  As I’ve argued in much more detail in a forthcoming article, Day's holding is not unique; most states that have considered the issue consider groundwater use rights to be property rights with potential constitutional protection against takings.  Yet other states also have repeatedely held that the exercise of those rights may—indeed should—be substantially regulated without any need for the state to pay compensation.  Even in Texas, which has a partially-deserved reputation for particularly lax groundwater use regulation, court cases—including the Day decision itself—contain abundant language acknowledging the important governmental role in regulating groundwater use.  So, while I think there are problems with Day, it did not preordain this extreme result.

-Dave Owen

August 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

"Science: What's it Up To?"

Today in my international environmental law class I showed the below clip from the Daily Show to add some levity to the classroom. We were discussing scientific uncertainty, the precautionary principle, scientific consensus and a variety of other issues related to climate change and other global problems. Scientific data rarely, if ever, meets the 100% certainty mark, and the 95% certainty (now higher than that according to the recently leaked IPCC report) that scientists maintain about human contribution to climate change may be as close as we can get to absolute certainty.

We discussed "50-50" journalism, which is the concept that news media - in an effort to be "balanced" - often portray to the public one party agreeing with a majority of climate scientists and one party in opposition. The public, therefore, believes that the issue is a close call, or that the race for the truth is "spandex tight," as Dan Rather would say. Never mind the fact that if I offered climate skeptics a drink that was tasty, gave a boost of energy, and came in a cool can, but which also had a 50% chance of giving them cancer, they would surely turn it down. 

At any rate, this video gets at the heart of the contention that climate change is a conspiracy to line the pockets of academics. I first note for the class that, of course, there are extreme groups on both sides of the issue. But assuming for a moment that certain groups had more of a vested interest in skewing public perception on climate, would it be scientists in an effort to get "rich" on grant money (does this actually happen?) or entities within the economic sector most reliant on the burning of fossil fuels? To choose the former just indicates a serious deficit of common sense. 

At any rate, this is a fairly hilarious clip - and does get a few chuckles from the class, which is nice from time to time.


- Blake Hudson

August 27, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, August 19, 2013

EPA's Vapor Intrusion Guidance

In April, EPA’s Office of Solid Waste and Emergency Response issued an external review draft of its Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air.  Vapor intrusion, as the title of the document suggests, is the migration of volatile chemicals from subsurface sources into overlying buildings. It occurs as a result of environmental contamination, when chemicals volatilize from contaminated soil and groundwater beneath buildings and other structures. 

In a 2011 article in the Virginia Environmental Law Journal, I examined the jurisdictional quandary that vapor intrusion presents for EPA and OSHA.  As a form of environmental contamination, vapor intrusion triggers EPA’s cleanup authority under RCRA and CERCLA.  But some buildings in which vapor intrusion is a problem are workplaces, potentially implicating OSHA’s regulatory authority as well.  Whether vapor intrusion in workplaces should be the province of OSHA, EPA, or both agencies has been a matter of considerable disagreement. 

EPA’s previous draft guidance document regarding vapor intrusion, issued in November 2002, conveyed mixed signals about EPA’s jurisdiction over vapor intrusion in occupational settings.  The document stated that “OSHA and EPA have agreed that OSHA generally will take the lead role in addressing occupational exposures” and that “EPA does not expect this guidance be used for settings that are primarily occupational,” but also noted that vapor intrusion is not a typical occupational exposure and that OSHA exposure limits may therefore not be adequate.

EPA’s new draft final guidance seems to assert EPA authority to address vapor intrusion in occupational settings.  The draft states, “EPA’s statutory authorities to protect human health . . . include mandates to protect the public and workers’ health in nonresidential settings where hazardous vapors may be intruding into occupied buildings from vapor intrusion.”  The draft does not specifically address the question of how EPA’s authority interacts with OSHA’s authority, but its language is consistent with the position EPA seemed to settle on after its 2002 draft guidance, which is that EPA can appropriately regulate occupational exposures at least as to chemicals not in use at the worksite, because OSHA has concluded that it lacks authority over contamination that does not originate from the workplace.

The comments EPA received on the draft final guidance are available on regulations.gov.  Some commenters—mainly state environmental regulators, from what I saw—would like EPA to go further in its guidance and explicitly assert authority over vapor intrusion in all occupational settings.  The regulated industry—potentially responsible parties and property owners—would prefer for EPA to simply apply OSHA’s apparently more lenient standards. 

In defense of their assertion that EPA should apply OSHA’s standards, regulated industry’s comments cite a need for “consistency” and “uniformity.”  But even if consistency and uniformity are desirable in this context—there are policy considerations here that mirror the policy debates over federalism—this would not necessarily support the conclusion that OSHA’s more lenient standards are superior to EPA’s more stringent ones.  Indeed, a disparity between OSHA’s standards and EPA’s standards could indicate the inadequacy of OSHA’s standards, rather than excessive conservatism in EPA’s standards.  In sum, it is not at all clear that the industry commenters’ calls for uniformity and consistency get them to their goal of EPA adopting OSHA’s standards.

My article argued that overlapping regulatory jurisdictions can be an opportunity for agencies to address in constructive ways the discontinuities that exist between statutory schemes, such as differences between RCRA and CERCLA and the OSH Act.  EPA, in its guidance, seems to be making a concerted effort to engage thoughtfully with the issue of its regulatory overlap with OSHA.  Let’s hope the agency continues to move in that direction, rather than the more knee-jerk direction advocated in the regulated industry’s comments.

--Todd Aagaard

August 19, 2013 | Permalink | TrackBack (0)

Monday, August 12, 2013

Wisconsin Backs Off Its Public Trust Doctrine

On July 16, 2013, the Wisconsin Supreme Court decided Rock-Koshkonong Lake District v. Wisconsin Department of Natural Resources, 833 N.W.2d 800 (Wis. 2013), reversing a Wisconsin Court of Appeals decision that had incorporated Wisconsin's broad constitutional public trust doctrine into the Wisconsin Department of Natural Resources' (WDNR's) statutory authority to regulate the levels and flows of Wisconsin's navigable waters. Among other things, for example, the Wisconsin Court of Appeals had held that WDNR could use its authority to consider non-navigable wetlands when it was asked to change the level of a navigable lake.

The Wisconsin Supreme Court's reversal sparked a lively debate among the Justices regarding Wisconsin's public trust doctrine--with the dissenters, in my humble opinion, having the more accurate view of the history of Wisconsin's public trust jurisprudence. Giving little deference to the WDNR (¶¶ 52-64), the majority held that Wisconsin's constitutional public trust doctrine does not extend beyond the (traditionally) navigable waters: "Applying the public trust doctrine to non-navigable land above the OHWM would eliminate the rationale for the doctrine. The ramifications for private property owners could be very significant" (p. 819, ¶ 77). In particular, the majority was concerned about the effects of an extended public trust doctrine on private ownership of lands submerged beneath non-navigable waters: "Contemplating the question of ownership is important because the public trust doctrine implicates state ownership or virtual state ownership—by virtue of its trust responsibility—of land under navigable waters. If the public trust were extended to cover wetlands that are not navigable, it would create significant questions about ownership of and trespass on private land, and it would be difficult to cabin expansion of the state's new constitutionally based jurisdiction over private land" (p. 820, ¶ 84).

Perhaps most disturbingly--and a development that Natural Resources and Water Law professors should be aware of--the Rock-Koshkonong majority reinterpreted a classic public trust doctrine case, Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), to be a police power case (pp. 823-24, ¶¶ 95-103). While it is true that the court upheld WDNR's broad powers to protect the state's water resources pursuant to the police power, its reinterpretation of Just and its reversal of the Wisconsin Court of Appeals divorced WDNR's regulatory authority from its constitutional public trust doctrine duties, suggesting that water resource regulation in Wisconsin is now subject to legislative revision more protective of riparian property owners' claims of harm. The majority's conclusion that the WDNR must consider economic impacts on riparian owners when deciding petitions to change lake levels (pp. 828-35, ¶¶ 126-148) may be one hint of developments to come in Wisconsin water resources law.

The three dissenting Justices most vehemently criticized the majority for overreaching:

¶ 153 This case presents a question that the majority can—indeed does—answer by interpreting Wis. Stat. § 31.02(1) (2009–10). Yet the majority unnecessarily reaches out to the constitutional principle of the public trust doctrine from the Wisconsin Constitution, constricting the doctrine and misreading this court's precedent, especially the well-settled law articulated in Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972). Wisconsin's long and robust history of protecting the public trust is widely acknowledged and respected. The public trust doctrine imposes on the state, as trustee, the affirmative duty to protect, preserve, and promote the public's right to Wisconsin's waters.

¶ 154 The majority opinion attempts to undermine this court's precedent, recharacterize its holdings, and rewrite history. Instead of limiting itself to addressing only what must be addressed, the majority seizes this opportunity to limit the public trust doctrine in an unforeseen way, transforming the state's affirmative duty to protect the public trust into a legislative choice. It needlessly unsettles our precedent and weakens the public trust doctrine that is enshrined in the Wisconsin Constitution. This represents a significant and disturbing shift in Wisconsin law.

(pp. 835-36, J. Crooks, dissenting). Only time will tell how correct the dissenters prove to be, but this case represents a significant reversal in thinking by one of the most traditionally protective states in terms of an environmental public trust doctrine.

       -- Robin Kundis Craig

      NOTE: Bob Adler, Noah Hall, and I include the Court of Appeals/Wisconsin Supreme Court dialectic in our new casebook, Modern Water Law: Private Property, Public Rights, and Environmental Protection (Foundation Press 2013) and its forthcoming Teachers Manual. You can download an electronic version of the casebook for free through West Academic.

August 12, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, August 8, 2013

A Really Good Book on Invasive Species

I recently finished reading Out of Eden: An Odyssey of Ecological Invasion by Alan Burdick (thanks to Jim Salzman for letting me know about the book).  It's a wonderful book, and I would recommend it to anyone with an interest in the science, policy, or law of biodiversity.

GreenCrab_USGSAs its title suggests, the book is about invasive species (like the European green crab shown to the left).  That's a pretty big and important subject, and Burdick makes it compelling, but he also manages to pack much more in.  The book also is a broader study ecology and ecologists, and in its mix of scientific and human stories, it's quite similar to David Quammen's The Song of the Dodo, which I also loved.  The law of invasive species is more of a secondary focus, but environmental lawyers also will find quite a lot to think about.  And it's very readable.  I couldn't put it down.

-Dave Owen

August 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 31, 2013

Want Great Environmental Texts at a Discount?

Island Press
Island Press is running a special summer promotion on a number of excellent environmental e-books, including Professor Roy Gardner's book Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics, which I have previously blogged about here. Along with more than 500 other e-books, it will be discounted to $4.99 until August 5. If interested, visit www.islandpress.org (with code SALE), Amazon, Barnes & Noble, Apple, or Kobo stores. 

- Blake Hudson

July 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, July 26, 2013

What's New in Fracking (Fracing, Hydrofracking, Hydraulic Fracturing) Law?

Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace.  The law, too, is quickly changing.  If you're teaching or writing in this area this fall, I've listed some of my favorite resources below.  Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.

The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required.  These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons.  This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago.  The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks.  All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process. 

How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves.  The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed.  The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG."  The project is still under construction.

The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically.  There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.  

Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time.  Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations.  The technique has, of course, changed quite a bit since then.  The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed.  Other older fracs used mostly water.  But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques.  Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions.  Acid injected before the water can also help form fractures.

The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers.  The companies fracture each interval, which greatly enhances well production. 

The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments.  But the regulation of oil and gas development is very much in flux. 

Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions.  The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works.  The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level.  Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.

In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming.  The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing.  One USGS study in Arkansas found no impacts on water quality from "gas-production activities."  The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.

The Fish and Wildlife Service has also begun to be more active in this area.  On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.

State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals.  In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules.  Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.

Local and state:  The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells.  A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development.  A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field.  The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.

Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary.  If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.

Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases.  In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:

"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not  protected by the “rule of capture,” but rather constitutes an actionable trespass."

There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable.  When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior."  See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA.  United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).

Science:  Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio.  Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers.  D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal."  For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.

With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage.  The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius.  Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs.  And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.

Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document.  For impacts on local economies, Penn State has a number of good sources.  And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.

And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas.  A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.

-Hannah Wiseman

July 26, 2013 in Climate Change, Energy, Land Use, Water Quality, Water Resources | Permalink | Comments (3) | TrackBack (0)

Friday, July 19, 2013

Uttarakhand: A prelude to climate catastrophes?

Each year, when the thaw sets in the Himalyan Valley of Uttarakhand, piligrims flock to the holy temples in the region, such as Kedarnath. This year was no different. Except, the holy shrine of Kedarnath, which is over thousand years old, turned into a grave site with bodies piled up around its structure. The cause: unprecedented flash floods that have devastated the region. Hundreds have died and nearly 6,000 people are missing. An online search engine of “Uttarakhand” will provide several news reports and op-eds on the scale of the devastation. The big question is what caused the floods? It is unclear. The Government of India has set up a committee to do a post-mortem. In the meantime, let us assume that global warming may be one reason, since scientists have predicted these kinds of sudden weather changes as a consequence of climate change. What this catastrophe then illustrates is the vulnerability of people living in nations such as India (and no doubt elsewhere, too).

Since the floods occurred suddenly, there was no room to warn or evacuate before the floods and the ensuing landslides occurred. People were stranded in dangerous terrains in a region that is already difficult to access. As roads and houses collapsed into the water, hundreds were drowned and thousands stranded. The Indian Army’s rescue operations were greatly impeded by unexpected rainfall. Neither prevention nor effective rescue was possible.

For locals in the region, this human tragedy is marked by huge economic loss, as well. Tourism (and hydroelectricity) is a major source of income. The floods hit the region during peak tourist season, causing significant loss of income. The only hope is that the reconstruction process will create jobs, but the human cost at which this may occur makes it a small consolation.

The floods also illustrate the difficulty facing countries such as India in adapting to climate change to avert catastrophic consequences. Thousands of people have to be re-located and buildings re-built. In a region where seasonal tourism or hydro electric power are key sources of income, the cost of such measures may outweigh the risks, at least in the short term. If re-location within the region is not possible, then the question is whether people can be absorbed into other regions. Such a move could also trigger economic concerns, such as finding employment for those re-located.

Any inadequate adaptation action, especially when combined with unsatisfactory rescue operations could chill travel, if such events increase, and result in people staying put. This will doubly affect the local population, who will lose their source of income even as they become increasingly vulnerable to climate change consequences. At that point, no legal intervention can possibly ensure that those affected receive proportionate remedies.

Uttarakhand should serve as a wake up call. To ensure that justice, even considered in the loosest sense, is denied to people such as those affected in Uttarkhand, a proper action plan on climate change is urgently needed. Finger pointing will not resurrect the dead.


July 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 18, 2013

"A Terrifying, Fascinating Timelapse of 30 Years of Human Impact on Earth"

You can use the tool/view the images here. Here is what the tool is:

"Since the 1970s, NASA and the U.S. Geological Survey have been amassing satellite images of every inch of our planet as part of the Landsat program. Over time, the images reveal a record of change: of cities expanding, lakes and forests disappearing, new islands emerging from the sea off the coast of rising Middle East metropolises like Dubai."

There is a tool at this site that allows you to "zoom in to any spot on the planet – your hometown, the Amazon, your favorite Chinese mega-city – and watch the same three-decade timelapse unroll. Good luck getting anything done for the rest of the day."

Indeed, compare the images below of my hometown of Baton Rouge, Louisiana in 1984 and 2012. 

Baton Rouge Combined

I have previously blogged/halfway joked about humans behaving as a virus. But spending a little time on this site makes that perspective a little less funny.

- Blake Hudson

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

The Moral Case for "Wealth Destroying" Limitations on Property Rights - From Slavery to Leopold

Last Thursday, at the Economics Institute for Law Professors (which I earlier discussed here), Terry Anderson of the Property and Environment Research Center gave a fantastic presentation on "free market environmentalism." Anderson admitted that this was somewhat of an unfortunate phrase as it signals an open-ended, silver bullet market-driven approach to environmental protection. But the basic premise of this type of environmentalism is that markets harnessing property rights can provide protections for the environment above and beyond what government would be able to accomplish through regulation. And indeed, Anderson highlighted numerous compelling examples where regulatory intervention led to environmentally destructive unintended consequences, whereas environmental gains would have been achieved if markets had been allowed to work freely.

But another point of Anderson's talk, at least in my interpretation, is that under many (if not most) circumstances, rather than "destroying wealth" of property owners through regulation that prohibits them from using their environmental resources (through, say, creating pollution or engaging in potentially unsustainable extractive activities), we should just pay them not to pollute or not to unsustainably extract. And, of course, there are many examples of successful policies based on paying landowners to preserve positive externalities.

During the talk, however, an interesting point was raised. A professor made the point that she was having a hard time reconciling the view of property rights whereby markets can efficiently resolve all conflicts with the history of slavery in the U.S. In other words, pure markets likely would have perpetuated slavery since in the absence of "wealth destroying" regulations on slave-owner property rights we would have had to rely on the federal government or others opposed to slavery to make it more profitable for slave-owners to sell slaves (who would then be freed by the purchaser) than to retain slaves. First, of course, the pure economics of this potential "transaction" (which Anderson admitted was a cold and calculating way to engage in this discussion, and he handled the whole difficult conversation with great sensitivity) would weigh heavily in favor of perpetuating slavery because the abolitionists would have had an incredibly difficult time raising the capital required to free all of the slaves. Second, and far more importantly, the pure economic, market analysis says nothing of the injustice or the lack of morality of slavery. Slave abolition, or "wealth destroying" regulation (or the fact that we went to war over the issue), on the other hand, made a definitive normative statement about the morality of slavery. Abolition said that we as a society - as a collective - believe slavery is wrong and notwithstanding very real (but ultimately artificially created) property interests and technical "wealth destruction" aimed at slave owners we will no longer accept the practice.

By way of example, and looking again through the cold and calculating lens of property rights (though unjust), consider the technical values citizens in 1863 gave to slaves in my home county in Alabama, as depicted in the following image:

Clarke County Slavery

Compare the estimated value of land, at roughly $1.9 million, with the estimated value of slaves, at roughly $3.5 million. Thus, when looked at through a pure property perspective, Anderson described that regulatory abolition of slavery technically destroyed a great amount of wealth for some property owners, the slave owners, and redistributed it to other, new "property" owners, the slaves (where the property in question was freedom from slavery). Of course, Anderson highlighted that the moral case against slavery justified for American citizens the destruction of wealth for some and its redistribution to others. The moral case demanded this approach, whereas a pure economic, market-driven approach may have supported another approach in the form of purchasing slaves and freeing them.

The difficulty this posed to me in assessing Anderson's presentation is that it is difficult to see how the logic of environmental regulation is different. Let me be clear, human rights and slavery should be a far higher priority than clean air or water - because without basic human dignity and civil rights the environment we live in cannot be protected or at least cannot be protected through credible government action (how can a government protect the environment without first protecting the rights of its citizens?). Nonetheless, why should we under all circumstances pay others not to pollute or unsustainably extract? Is there a moral case that in some circumstances landowners should be prevented from doing so, and should not be paid as a result? While I am actually quite in favor of environmental markets, promotion of ecosystem service markets, and the internalization of environmental externalities that have long been excluded from the market (and am also a rural forestland property owner), I also believe that there are some circumstances where regulatory limits are the most effective means, and the normative, morally correct approach, to balancing private rights with the public interest. I have discussed this in a historical, descriptive context here. Take, for example, an urban growth boundary aimed at preventing urban sprawl, even though a landowner on the outside of the boundary now maintains property worth $1,000 an acre while a property owner just inside the boundary maintains property worth $10,000 an acre. Perhaps some short-term economic wealth is destroyed for the property owner outside the boundary, but long-term wealth is gained by society at large and future generations (in the form of access to natural capital like forests, wetlands, open space, and biodiversity and also in the form of reduced air and water pollution and a variety of other environmental harms).

This was largely the point of Leopold's "land ethic," that the rights and ethics that have been extended to minorities, women, laboring children and others over time should eventually be extended to the land and environment - that there is a moral case for environmental protection. In this view, regulation may very well "destroy wealth" of property owners who might otherwise pollute or unsustainably extract and redistribute it not only to the current public to enjoy but also to future generations who later have access to those resources and an unpolluted environment. But it is also a moral mandate, rather than something that can or should always be left to market transactions compensating polluters and unsustainable extractors from undertaking those activities (of course, one of Anderson's very compelling points is that politicians creating regulations often sacrifice the environmental wealth of future generations in order to make short-term economic and other gains. In other words, governments may, and often do, wield regulatory tools irresponsibly with regards to the environment - and this is where the market can come in and do far better).

Ultimately, once we admit that there is one moral case for regulatory limits on property rights (such as in the case of slavery), then there must be other cases that warrant deeper analysis than we have historically undertaken. We may argue over the morals that drive those choices, of course, as people have many different perspectives on moral justifications for limiting the rights of others (including property owners). But when I consider my children and the climate-changed, highly populated, increasingly paved, and resource stressed world they will live in, it is difficult for me not to view environmental conservation as a moral imperative. An imperative upon which "liberals," who stereotypically prefer regulation, and "libertarians" and "conservatives," who stereotypically prefer markets, can agree. And perhaps this is the hope - that regulation and markets can work together to make a better world and a better future.

- Blake Hudson

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 11, 2013

The Residual Designation Authority Bombshell

Yesterday brought big news in the water quality world.  American Rivers, the Conservation Law Foundation, the Natural Resources Defense Council, and several other environmental groups filed “residual designation authority” petitions for stormwater discharges across EPA Regions 1 (New England), 3 (mid-Atlantic), and 9 (southwestern states and California).  That may sound like an obscure and technical act, but here’s why it’s actually a very big deal.

Storm drainFor years, urban stormwater runoff has been one of the United States’ greatest unsolved water quality challenges.  Urban runoff is second only to agricultural runoff as a source of water quality impairment, and on a per-acre basis, urban development is generally more damaging to water quality than agricultural use.  But EPA has struggled to regulate urban stormwater runoff.  For years, EPA barely regulated urban stormwater runoff at all.  The 1987 Clean Water Act amendments compelled EPA to act, but even today, many point sources of urban stormwater runoff escape coverage under the National Pollutant Discharge Elimination System.  The gaps are particularly salient for areas that are highly developed but lightly populated (shopping malls, for example).  These areas generate a lot of polluted runoff, but they generally aren’t industrial and therefore escape coverage under the industrial program.  They also often lack sufficient population to be included in the municipal permitting program (which covers census tracts based on their population density).  Those gaps—and the weak coverage of the many sources that are subject to permitting—have real costs.  Water quality impairment now is a pervasive feature of our urban and suburban landscapes.   

Several years ago, the Conservation Law Foundation (one of the organizations that filed yesterday’s petitions) discovered a potential legal remedy for this issue.  Buried in the depths of Clean Water Act section 402 is a provision requiring EPA (or a state with delegated permitting authority) to require permits for any stormwater discharge that EPA or the state administrator determines “contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.”  For years, no one had paid any attention to that provision; one industry lawyer later referred to it as “the sleeping giant.”  But CLF filed RDA petitions in Vermont, Massachusetts, and Maine.  Each petition led to major expansions—albeit over relatively small geographic areas—in the scope of Clean Water Act permitting coverage.

A few images illustrate the impact of the change.  The three images below show the Long Creek watershed in Maine. 

Long creek 1

This first image at the top shows the extent of permit coverage under EPA’s municipal program. As you can see, most of the watershed is not included, despite a high level of commercial development.

Long creek 2
This second image shows the extent of permitting coverage under the industrial program.  In combination, these two images show the geographic extent of permit coverage as of 2009.

Long creek 3

This third image shows the extent of Clean Water Act permitting coverage after EPA granted CLF’s petition (since the figure was created, the extent of permit coverage has expanded slightly).  For the Long Creek watershed, this was a transformative regulatory change.

And that’s what makes yesterday’s filing so important.  The environmental groups aren’t just asking for this regulatory change in a few small, test-case watersheds.  They’re asking for the change across huge swaths of the country.  In terms of the potential scale of impact, the closest recent analogy is the Decker v. Northwest Environmental Defense Center case, which seemed poised—until the Supreme Court granted cert and then reversed the Ninth Circuit—to expand Clean Water Act permitting requirements across much of the forestry sector.  I’d argue that these petitions call for an even more ambitious effort, and that they probably address an even larger water quality problem.

There’s much more that could be said about these petitions, but I’ll stop there for now.  Readers interested in learning more about these issues might be interested in the articles here and here, both of which discuss Long Creek and RDA in more depth.  The website of the Long Creek Restoration Project, which documents some of the innovative work that continues to take place in that watershed, is here.  And for an older post explaining why urban stormwater issues are more important and interesting than most environmental lawyers realize, see here.  And stay tuned.  This is an issue worth following.

-Dave Owen


July 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Weighing Short Term Knowns with Long Term Unknowns in Environmental Policy - a Law and Economics Perspective

Grocery Bag Bans and Foodborne IllnessOver the next two weeks I will be participating in George Mason University School of Law's Law and Economics Center Economics Institute for Law Professors. Yesterday, Joshua Wright gave a fascinating presentation that included discussion of his recent paper "Grocery Bag Bans and Foodborne Illness." In the paper, Wright and his co-author presented empirical analysis of the health effects of the many, and increasing, jurisdictions that have instituted plastic bag bans or taxes. In short, when such a ban goes into place or when bags are taxed, people shift to substitutes. These substitutes largely take the form of re-usable cloth (or other) bags. The problem, however, is that people by and large do not wash their reusable bags. These bags become contaminated with a wide variety of nasty bacteria and other contaminants, leading to an increase in both illness and death. In fact, the data demonstrates that both emergency room visits and deaths linked to these contaminants increased by 25% after plastic bag bans or taxes were instituted. This translates into, for example, between 5 and 6 extra deaths a year in San Francisco County. The purported benefits that supporters of the plastic bag ban in San Francisco put forth and which Wright's paper cites are the prevention of over 100,000 marine animal deaths per year to plastic entanglement and reducing the consumption of over 12 million barrels of oil required to produce plastic bags used in the United States annually.

The overarching point of Wright's presentation is that often our policy choices are based on conventional wisdom ("convenient wisdom") and the unintended consequences of policies should be brought to light through empirical data and economic analysis. The argument is not unlike the "Freakonomics" argument that parents are more willing to allow their children go play in the homes of children who's parents own a pool than those who own a gun, even though the data demonstrates that their children are far more likely to drown than to die by firearm accident in those homes. I fully agree that more information is always better, and that policy-makers should take into account as many variables as possible when making policy decisions. 

There are a few things that bother me about relying too heavily on this approach, however. The concerns I have do not lead me to conclude that the approach should not be taken, but rather that this type of data should be passed on to policy-makers with the appropriate caveats that short term known harms may very well be outweighed by incalculable long term unknowns, and that those "known unknowns" should be detailed to the fullest extent possible.

First, I am concerned with how the benefits and harms may be presented in these types of studies: 100,000 marine animals or some number of barrels of oil versus human lives. This is not necessarily a problem of the researchers in these studies, as they may very well be merely passing along the purported harms avoided posited by the advocates of the policy (here, the supporters of the bag ban). And yet, when the results are pitched as human lives versus a limited number of other harms not directly related to immediate human life and death considerations, it is easy to see how policy-makers might choose the policy that would avoid immediate human deaths (i.e. a bag ban reversal).

Second, and relatedly, the problem is that future yearly human deaths associated with plastic bag production are largely unquantifiable. In other words, short term knowns are more easily quantifiable through this type of empirical analysis, whereas long term, aggregated harms (which may indeed result in far more average deaths per year than 5-6 in a particular jurisdiction) or avoided benefits do not lend themselves to the same type of empirical analysis. At the very least, any empirical data that is produced is based upon projections and models, not upon identifiable deaths that have already occurred. It is incredibly difficult if not impossible to calculate the aggregated contribution of plastic bag production on climate change and sea level rise, that may lead to increased death through heightened storm disaster events, expansion of disease vectors, or its contribution to increased sexual dysfunction or cancer incidence through phthalate or BPA-like chemicals that are taken up through the human body through contact with plastic bags or bioaccumulation from plastic bag pollution in the oceans. So when policy-makers have a choice between two policies, "Policy 1 (with data) vs. Policy 2 (with no or uncertain data)," there is a bias toward the policy based upon short term, quantifiable data.

These biases, of course, appear all the time in the face of uncertainty. It reminds me of the recent Louisiana Coastal Master Plan, which plans to invest $50 billion over the next few decades on projects to mitigate coastal land loss through sediment diversions, levee, dam, and other human-built construction, etc. A recent report notes that Louisiana has the highest rate of relative sea level rise in the world, because as sea levels are increasingly rising, the land in Louisiana is rapidly sinking due to the historical diversion of the Mississippi River. A full 85% of Louisianans support the investment. I am willing to bet that 85% of Louisianans would not identify themselves as ardent environmentalists (though I argue that environmentalism is not a partisan issue and we all should consider ourselves environmentalists) or as citizens who love tax expenditures on government programs. Yet the support is widespread. This is because the short term known (immediate engineering and other feats aimed at making us feel like we can forestall sea level rise) outweighs the long-term unknown (will those projects work and would it have been better to invest those funds into adapting to coastal land loss by moving out of areas likely to be lost). In fact, the science is far from certain that sediment diversions will actually undo much of the damage that has been done along the Mississippi River, meaning that we may not be able to rebuild land in order to forestall sea level rise impacts. There is a strong chance that some of these mitigation efforts will be throwing good money after bad, at least in some areas where political pressure is to "save our coast!" Yet, imagine you have two candidates running for office in Louisiana. Candidate A, knowing that 85% of the Louisiana populous wants to save the coast, says "I will support saving your coast, investing billions in coastal restoration through sediment diversions and human-built construction that will forestall sea level rise impacts." Candidate B says "there is likely not much we can do over the long term to save significant portions of the coast, considering the rate of sea level rise and the models of future climate change impacts and atmospheric carbon concentrations. Let's take that money and invest it in adapting to coastal land loss by moving you out of areas likely to be inundated." Who gets elected? My bet is on Candidate A, even though (and perhaps because of the fact that) Candidate A AND the people who voted for him/her will be dead and gone by the time it becomes clear whether the $50 billion investment failed or not.

Ultimately, I think that empirical data on short term effects is very important and should be taken into account by policy-makers - more information is never a bad thing. But, so much of economics is about using finely tuned formulas to project short-term effects, while the long-term unknowns are largely incapable of being assessed with the accuracy that economic analysis typically prefers (hence the pervasiveness of discount rates, often inappropriately calculated when assessing the availability of resources to future generations). Policy-makers need to take these analyses with a grain of salt, recognizing that much larger policy goals stretching over much longer time periods are at stake. Today's policies are not just aimed at current residents of San Francisco, but have effects on citizens the world over and in the centuries to come.

- Blake Hudson

July 10, 2013 | Permalink | Comments (0) | TrackBack (0)