Environmental Law Prof Blog

Nuclear(?) Future(s)

As the saga continues to unfold at Fukushima Daiichi, commentators continue to question what the disaster will mean for the future of nuclear energy.  Numerous media outlets have extensive coverage, including at the Washington Post, the New York Times, the BBC, and Time.

This week's Economist has a particularly interesting article, "When the Steam Clears," which takes up the question from the international vantage.  The article, in a way, begins with its conclusion:  "Fear and uncertainty spread faster and farther than any nuclear fallout."  Its point is clear.  Whether one is on the nuclear energy bandwagon or not, perception matters terribly.  And for an industry that, in the U.S. at least, has been largely stalled out for the immediate past decades, Fukushima is casting a rather long shadow.

 More specifically, the article makes three observations worth highlighting:

1. Nuclear is expensive.  This is hardly revelatory, but the point The Economist makes with the fact is one often forgotten.  It is worth remembering.  As a result of nuclear's cost, most plants today are old:  "[W]ith a median age of about 27 years and a typical design life of 40 a lot [of nuclear power plants] are nearing retirement."
    
2. Nuclear is ubiquitous, if not dominant.  Although the U.S. leads the world with over 100 reactors, we get about 20 percent of our electricity from them.  Other nations take much more of their electricity from nuclear -- Germany at 26 percent, Japan at 29, South Korea at 35, Ukraine at 49, and, of course, France leading the globe at roughly three-quarters their total electric production.  Still, the world average is much lower.  "[N]nuclear power is much less fundamental to the workings of the world than petrol or aeroplanes.  Nuclear reactors generate only 14% of the world’s electricity . . . ."
    
3. Nuclear is not going away.  While the disaster at Fukushima clearly has resurrected the specter of nuclear tragedy 25 years after Chernobyl and 30 post-Three Mile Island, even the dimmest of views on the technology has not stopped its continued use.  Last week, with Fukushima still front page news, the Nuclear Regulatory Commission extended the license of one U.S. plant.  And, as with many things nowadays, China is a leader.  It is planning extensive nuclear expansion.  "Though China, which has 77 reactors at various stages of construction, planning and discussion, has said it will review its programme in the aftermath of Fukushima, few expect it to stop entirely.  China has a great appetite for energy, which will continue to grow."

Weighing these observations leads to a number of others that will certainly be in play as the fate of nuclear is considered, both here in the U.S. and abroad, in the aftermath of Fukushima.

First, virtually everyone will reevaluate plant safety because of Fukushima, and this may mean changes for both those already in existence and those planned to come online.  The NRC has already said it will be taking a hard look in the U.S., and of course other countries have become even more skittish, as I posted two weeks ago.  In any case, these (re)evaluations may well impact how much -- or at least how quickly -- new facilities are added to the grid.  The massive stranded costs the companies that built plants in the U.S. in the 1970s and 80s faced after regulation kept changing cannot be far from the front of their collective minds.

Second, we still have not solved the largest stumbling block to using nuclear, whether that use is in its current proportion or an increased one.  Long-term storage of high-level nuclear waste is a bugaboo.  No state wants the waste.  Yucca has dragged on for literally decades.  Now it is unfunded.  Meanwhile, there are already rumblings about whether the current de facto "solution" -- storing the waste at operating reactors, often in storage ponds -- should continue.  None of those facts, or the questions they imply, are easy.

Third, if nuclear is going to be used, Fukushima only highlights the need to make the decision concsiously, openly, and democratically.  As David Spence articulately observed yesterday on the envlawprofs email listserv, all energy options force tradeoffs.  Fears associated with nuclear are persistent, whether they are accurate representations of its real risks or not.  Compare the actual deaths and costs associated with nuclear over the past half-century with those of, say, coal, as Prof. Spence noted, and the factual (rather than perceived) assessment of risks may change.  True, nuclear has clear downsides, but it has many advantages as well.  As with climate change, if industry is going to continue pursuing nuclear as an option, clear signals are needed. 

Right now, the legislative signals on climate change, in the U.S. at least, are muddled if not stalled out.  Fukushima may have only the same effect for nuclear.

For an energy source that now provides one-fifth of our electricity, one wonders whether stalemate is the right answer.  In a world where nuclear now faces multiple possible futures, that's a question we must ask.

-Lincoln Davies

Owen on Critical Habitat

Recently, Dave Owen posted his latest article, Critical Habitat and the Challenge of Regulating Small Harms, on SSRN (available here).  He also recently accepted an offer to publish the piece in the Florida Law Review.  

Of course, critical habitat has been a major topic of debate and an evolving aspect of Endangered Species Act law.  Much of this debate, however, has often surrounded disagreements about policy and focused on how the Fish and Wildlife Service and the National Marine Fisheries Service ought to administer the law.  Frequently however, focus on the how ought has been accompanied by the tendency to overlook the how are.  Indeed, documentation of how FWS and NMFS actually administer the ESA is generally spotty at best. 

Owen’s article makes significant inroads by providing some much needed missing empirical evidence, particularly evidence relating to how agencies treat their obligation to assure federal projects do not “result in the destruction or adverse modification of habitat.”  He does this by gathering, coding and distilling an impressive collection of biological opinions (slightly more than 4000 opinions the agencies prepared between 2005 and 2009), reviewing judicial decisions, and through interviewing staff within FWS and NMFS.

Those with an interest in the administration of the ESA owe it to themselves to read the article.  What better way to really understand critical habitat than by getting into the weeds?

-- Brigham Daniels

Position Opening -- Assistant Dean of Environmental Programs at Pace Law

The Pace University School of Law has posted an opening for its Assistant Dean of Environmental Programs.  The Assistant Dean is responsible for directing the school's Center for Environmental Legal Studies (CELS).

Applicants should submit a resume and references to:

     Professor Leslie Yalof Garfield
     Chair, Search Committee
     Pace University School of Law
     78 North Broadway
     White Plains, N.Y. 10603
     e-mail:  [email protected] 

The full job posting is below.

-Lincoln Davies

---

"Pace University School of Law  (White Plains, NY) is seeking to fill one position, titled, Assistant Dean of Environmental Programs and Professor of Law for Designated Project or Service (Assistant Dean) for its nationally ranked Center for Environmental Legal Studies (CELS).  This non-tenure track position offers the opportunity to direct one of the nation’s top Environmental Law Programs.  The Assistant Dean reports to the Vice Dean for Academic Affairs, and will be responsible for the overall management and administration of the Center.

Working in conjunction with the environmental faculty, the Assistant Dean helps establish the overall direction for the Environmental Law Program and is responsible for developing new programs and projects and managing and coordinating the day-to-day undertakings of the Center.  Those responsibilities include organizing lectures, colloquia and our National Environmental Moot Court Competition, as well as coordinating programs with the Environmental Litigation Clinic, Pace Land Use Law Center, Pace Center for Climate and Energy Law, Brazil-American Institute for Law and Environment (BAILE), and Pace’s Public Interest Law Center.  The Assistant Dean also teaches in the program.  

The ideal candidate enjoys creating and maintaining partnerships and relationships with other law schools and educational institutions, bar and professional associations, governmental agencies, civic and community associations and the private sector.   We seek candidates with excellent administrative and management skills, in-depth knowledge of environmental law and the environmental legal community, and familiarity with academic institutions.  All applicants should have a J.D. degree.   Extensive legal and/or teaching experience in the area is a strong plus.

Pace is committed to achieving equal opportunity in all aspects of University life.  Applications are encouraged from people of color, gays and transgendered individuals, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of our school.

Salaries and benefits, including domestic partner benefits, are commensurate with experience and performance.  

Pace University School of Law is located in suburban White Plains, New York, in Westchester County, approximately 15 miles north of New York City.  Pace’s reputation and strong financial aid and scholarship program attract extremely talented students from diverse backgrounds, from thirty-four states, and more than 15 countries.  The Law School’s primary commitment is to providing its students with the skills, knowledge, and values necessary to be effective and ethical lawyers as well as community leaders.  We offer the resources of a private, nationally-ranked university, tuition waivers for family members and an attractive benefits and compensation package."

A Historical Perspective on the AB32 Lawsuit

The folks at Legal Planet have done a great job discussing the California Superior Court decision, Association of Irritated Residents, et al. v.  California Air Resources Board (available here), which enjoins further AB32 rulemaking and implementation until the Air Resources Board adequately considers alternatives to cap-and-trade.

I agree very much with Sean Hecht that the environmental justice groups’ challenge is an expression of their values, and more specifically of their concerns about both the efficacy and the equity of cap-and- trade as a regulatory instrument.  The groups that filed this lawsuit, particularly Communities for a Better Environment (CBE), also strongly opposed the Regional Clean Air Incentives Market (RECLAIM) program, the cap-and-trade program instituted by the South Coast Air Quality Management District (SCAQMD) in 1994 to control the emissions of NOx and SOx from utilities and industrial facilities in the LA air district.  As it turns out, their concerns were well-founded.

An important question early on in the RECLAIM rulemaking process was whether the program would achieve emissions reductions equivalent to those that would have been achieved under the direct regulatory approach that RECLAIM subsumed and replaced.  Indeed, California Health and Safety Code Section 39616(c)(1) legally required RECLAIM to achieve such equivalence.

As CBE predicted in its comments on the draft RECLAIM rules in 1993, the RECLAIM program failed the equivalence test.  SCAQMD found ways to claim RECLAIM was equivalent, but I think there was good lawsuit material there (where were you, CBE?).  Allowances in the program were greatly overallocated, and only minimal emissions reductions were achieved in the program’s first seven years.  Emissions weren’t reduced to manifestly feasible levels until RECLAIM experienced market failure with the California Energy Crisis in 2001 and SCAQMD pulled large polluters out of the program and ordered them to install pollution control equipment.

In the AB32 lawsuit, CBE argued that the court should find the AB32 Scoping Plan illegal on the basis that it hadn't shown that a cap-and-trade approach would be as effective in reducing emissions as direct regulation. However, the law was not as clear on this point as it had been in RECLAIM, and the court rejected this and other substantive challenges to ARB’s implementation of AB32.  Rather, CBE prevailed in its procedural claim that ARB had not adequately studied alternatives to cap-and-trade under CEQA.

This history is nonetheless relevant.  It shows that CBE and its allies have been watchful, serious and consistent in their concern about the efficacy and equity of cap and trade.  And it shows that there are good historical reasons for demanding that ARB closely examine alternatives to a cap-and-trade approach.  I, for one, would like to see a careful study of how the 1990s emissions reduction trajectory in the LA air district compared to the 1990s emissions reduction trajectory in all the other California air districts that didn’t adopt a cap and trade approach. I suspect that such a study would find that significant (negative) environmental effects resulted from SCAQMD's decision to adopt RECLAIM in the early 1990s.

- Lesley McAllister

Hari Osofsky on Diagonal Federalism and Climate Change

Hari Osofsky, Minnesota Law School, has posted a thoughtful and engaging article titled "Diagonal Federalism and Climate Change: Implications for the Obama Administration" on SSRN.  The article is forthcoming in the Alabama Law Review and can be downloaded here. The abstract can be read at the bottom of this post. 

Osofsky provides a clear view of the complexity of crafting climate change solutions, specifically noting that:

"The complex interactions between and among governments around the world at an international level, other branches of government at a national level, and multiple governmental entities at subnational levels—all of which also interact with nongovernmental organizations, corporations, international organizations, and private individuals—pose an ongoing governance challenge for the Obama Administration."

Osofsky describes how these complexities in the U.S. manifest through a "diagonal federalism" framework, which incorporates public and private actors vertically at all levels of government (local, state, national and international) and horizontally within specific levels of government.  Her article targets how the Obama administration can approach diagonal federalism in a way that "leads to the most effective climate policy," and how to structure the above-described complex interactions in a way that most effectively addresses climate change.

All too often, discussions of climate change response are focused on forging political will for regulatory action on climate or fleshing out what types of climate change responses would be most effective to curb carbon emissions (regulatory v. market-based, top-down v. bottom-up, e.g.).  Osofsky's article highlights an often overlooked aspect of climate change response; that is, how to navigate complex domestic legal structures to effectively implement climate change policy if and when it is forged. It is easy to say that "nations should enter into an international agreement on climate" or "nations should establish markets to foster unilateral nation-state initiatives to reduce carbon emissions." It is another thing altogether to assess the much more difficult questions of how to achieve those policy goals on the ground. Osofsky's article takes an important and much-needed step toward tackling the latter, and often more difficult, question.

"Diagonal Federalism and Climate Change: Implications for the Obama Administration"

ABSTRACT:

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal). After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for understanding how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policymaking. The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, nongovermental organizations, corporations, and government.

- Blake Hudson

Rethinking Transportation

As oil prices reach a two and a half year high, America's oil dependence--recently highlighted by the Deepwater Horizon disaster in the Gulf of Mexico--is once again apparent.  About seventy-two percent of oil used in the United States is for transportation, and approximately ninety-four percent of our energy for transportation comes from oil; natural gas and renewable fuel sources provide only about six percent of the energy that flows to the transportation sector according to the Energy Information Administration.

When I teach the regulation of mobile source emissions in Environmental Law, I like to use transportation as an example of each individual's contribution to environmental problems.  Emissions from industry and residential electricity production seem indirect; though we all buy manufactured goods and retail electricity,  the collective emissions from these actions come from a distant source that is easy to ignore.  When we fuel up at the gas pump and turn on the ignition, on the other hand, our individual impact is apparent.  And the EPA reminds us of the consequences of fueling up, observing that "[i]n 2008, transportation sources contributed approximately 27 percent of total U.S. greenhouse gas emissions" and were the "fastest-growing source of U.S. greenhouse gas emissions, accounting for 47 percent of the net increase in total U.S. emissions since 1990."

In sum, transportation centrally contributes to America's oil-based woes and climate change problems, and we need to fix it. So far, we've made limited progress.  In 2008, about 1.5 million light duty alternative fuel and hybrid vehicles were on the road.  About 2,700 of these vehicles were electric, and about 325,000 were "gasoline-electric hybrid."  The majority used ethanol as fuel.

Some would have us move quickly toward natural gas vehicles.  On April 13, Natural Gas Vehicles for America plans to display a "wide variety of natural gas-powered vehicles (NGVs) from around the country" in Washington.  With the surge in shale gas production,  abundant quantities of low-carbon natural gas are domestically available.  But if we are slowly moving toward an economy that relies on electricity from renewable energy, should we transform our fueling infrastructure to accommodate natural gas, only to replace this infrastructure with battery stations several decades later?

As with any environmental problem, there is no easy answer.  And current oil prices do not appear to be moving us anywhere near the OPEC crisis of the 70s, where long gas lines inspired serious, although brief, policy changes.  At minimum, the nuclear crisis in Japan, unrest in Libya, and gas prices at home will continue to highlight the energy-environment connection, at least in the short term.    

-Hannah Wiseman

Renewable Energy and the Common Law

Regulation of renewable energy is almost as old as the field itself.  Who, for instance, doesn't want a t-shirt emblazoned with the logo "I <heart> PURPA"?

Clearly, the emergence of renewable portfolio standards, feed-in tariffs, net metering requirements, a "smart grid," and more, make renewable energy regulation a burgeoning field.  This past January, the University of Utah law school hosted a symposium on "The Future of Energy Law," which touched on many of these issues.

Increasingly, though, there is an emerging scholarship on the intersection of the common law and renewable energy.  How these legal developments shake out, too, will have important ramifications for our energy profile of tomorrow.

Three recent examples of this scholarship are worth noting.  Or, as Professor Solum would say, "download them while they're hot!":

• Alan J. Alexander on The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest:  "Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed to oversupply and rampant waste of oil. Similarly, lack of regulation of the developing wind energy industry could lead to wasteful practices regarding wind energy development. This Note argues that the Texas Legislature should pass laws clarifying that wind is a natural resource under the Texas Constitution, and that to promote [conservation and development], the Legislature should statutorily recognize wind rights as an interest severable from land ownership."
 
• Alexandra B. Klass on Renewable Energy and the Public Trust Doctrine:  "This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance?"
 
• Troy A. Rule on Airspace in a Green Economy:  "[A] growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land."

-Lincoln Davies

Red Risk, Blue Risk

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

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

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

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

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

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

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

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

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

- Brigham Daniels

Energy Efficiency on the Rebound?

Energy efficiency policy is one of the few areas where we might still expect some progress at the federal level toward reducing greenhouse gas emissions in the next few years.  Predictably, energy efficiency has become the target of criticism. Republican senators argue that phasing out inefficient incandescent light bulbs is anti-consumer even though it would save consumers money on their energy bills.  And in a New York Times article, John Tierney took aim at energy efficiency standards by implying that energy efficiency improvements don’t actually save energy on account of the “rebound effect.”    The rebound effect expresses the idea that energy efficiency improvements result in a reduction in the price content of energy in the final consumer product or service, and consumers may respond to this cost savings by consuming more of that product or service (the direct rebound effect) or more of other products and services (the indirect rebound effect).  This increased consumption negates the presumed one-to-one relationship between efficiency improvements and energy savings. 

While theoretically plausible, the important question regards the actual size of the rebound effect.  Tierney suggests that the rebound effect may swallow the energy savings of energy efficiency, but the available empirical evidence does not bear this out.  The direct rebound effect has been much better studied than the indirect rebound effect (see Sorrell et al. 2009). In the transport sector, where the rebound effect has been most studied, the effect is likely to lie between 10 and 30%.  In other words, 70 to 90% of the energy savings achieved by a more efficient car are actually saved (and not negated in the form of higher consumption).  When more efficient heating is installed, about 80% of the energy savings remain intact.  From my perspective, a 70 to 90% energy savings looks pretty good. 

As for the indirect rebound effect, Sorrell et al. 2007 find that there are few published studies and that they are flawed. In other words, there is little empirical support for the indirect rebound effect.  According to Sorrell it has two components:  the embodied energy in energy efficiency improvements (the energy required to produce and install the measures that improve energy efficiency) and “secondary effects,” which refer to the change in demand for other goods and services spurred by energy efficiency improvements.  From what I can tell, these secondary effects seem to amount largely to the idea that consumers will spend whatever money they have on something, and that something is likely to require the use of energy.  While I can certainly see bemoaning the energy consumption of overconsumption (and I probably will in a future post), I just can’t see blaming it on energy efficiency. 

- Lesley McAllister

Hunting, Fishing, Survival, Guns, Gear....and Environmental Protection?

You might expect an article titled "How the Budget Bill Will Decimate Conservation" to be found on the Environmental Defense, Greenpeace or a variety of other environmentalist websites.  In fact, the article was posted at fieldandstream.com.  When you search for "Field and Stream" on Google, the search heading reads "Hunting, Fishing, Survival, Guns, Gear." This is not the place conventional wisdom would suggest that you find an article criticizing recent Congressional proposals to slash the budget.  The beginning of the article, however, sums up quite well the sentiment among conservationists who might also often be characterized as conservative:

"Unlike their counterparts at hard-line environmental groups, leaders of sportsmen's conservation organizations tend to measure their words. They avoid hyperbole, don't hyperventilate, and never hint that the sky is falling. That changed when they got a look at the budget priorities unveiled recently by the House of Representatives. Now they’re all looking nervously at the sky and using words like disaster, eviscerate, and destroy."

Last week I posted about Preserving Environmental Protection in a Down Economy, and how the current fiscal crisis creates difficult choices over the balance of government spending and environmental protection. The Field and Stream article is yet another example of how fiscal conservatism can often be at odds with conservation - even conservation supported by people who might under ordinary circumstances be categorized as fiscal conservatives. 

The article highlights a point made last week that fiscal crises can sometimes cause the evisceration of needed environmental protections under the guise of fiscal necessity, noting that much of the budget bill's cuts "will not lower the deficit but simply take aim at environmental laws that polluting industries have opposed for years—laws that sportsmen's groups support because of their ultimate impact on fish and wildlife habitat."

Sporting groups have long been friends of the environment, often putting aside partisan politics when it comes to environmental protection - think President Teddy Roosevelt. Sporting groups are also a boon to the economy. As the article notes, "the federal government spends about $5 billion a year in conservation programs that are essential to the habitat that supports hunting and fishing, but it gets back about $14 billion in direct tax payments from people who make their livings in those industries--and that's a conservative estimate."

Ultimately, it would serve fiscal conservatives well to look to sporting groups' supported use of a scalpel instead of a sledgehammer when it comes to environmental protection. Professor Daniels' recent post about "Junk Politics" is nowhere more apparent as here, where fiscal conservatives demonstrate a lack of discernment over which government funded projects are waste and which ones serve a vital role in the continuance of our society. Sporting groups, with all their hunting, fishing, guns, gear and - perhaps most importantly - survival instincts, seem to discern the differences quite well.

- Blake Hudson 

 

Energy Options

Similar to Professor McAllister's approach to nuclear energy in the classroom, I typically tell students in my energy and environmental law classes that there is no silver bullet in energy and that a range of fuel sources is necessary to satisfy the world's ever expanding demand for energy.  As the tragedy in Japan unfolds, a host of "energy portfolio" questions will continue to emerge.  Should nuclear energy continue to supply about nine percent of America's primary energy needs (and approximately twenty percent of U.S. electricity production, as Professor Davies observes below)?  What are the alternatives?  How dangerous are fossil fuels as compared to nuclear energy? 

No matter the answer to these difficult questions, it is still clear that there is no silver bullet.  If we move away from nuclear, the alternatives also pose substantial concerns.  This week, for example, the EPA highlighted the dangers of coal in proposing national standards on toxic emissions from coal-fired power plants (in response to a court order).  In announcing the standards, Administrator Jackson emphasized the devastating health effects of coal, such as asthma and nervous system damage in the young.  The EPA estimates that the health and economic benefits from these new standards will be $140 billion annually and that the standards will prevent as many as 17,000 premature deaths and 11,000 heart attacks annually.

Natural gas, which is often touted as the clean alternative to coal, other fossil fuels, and nuclear, also has risks, as highlighted in my last post.  In addition to concerns about chemicals and radioactivity levels in wastewater from hydraulically fractured wells, explosions of natural gas pipelines -- some deadly, and others not -- in Minneapolis, Allentown, and San Bruno remind us that no energy option is perfect. 

To end on a point of optimism, however, it is encouraging to see the continued, albeit slow, expansion of renewable energy in the United States. As the Energy Information Administration observes, "Wind power has been the fastest-growing source of new electric power generation for several years," and U.S. shipments of photovoltaic cells and modules skyrocketed in 2009.  Like any other energy source, renewables will not solve all of our problems, but they are a highly promising energy option. Building from the observations about energy planning in the post by Professor Davies below and Professor McAllister's points about energy efficiency, let's hope that as Americans mourn Japan's tragedy and reflect on our own energy options, we will be creative in contemplating an improved global energy future.

-Hannah Wiseman

Fukushima, Chernobyl, and U.S.

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

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

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

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

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

It is another entirely to ask what is at the heart of our modern energy dilemma.

That is the question we should be asking.  At a minimum, as Professor McAllister rightly noted earlier this week, it is a question about our energy consumption, and our failure to heed efficiency as a goal with the same vigor that our energy policy gives it lip service.

Even more fundamentally, however, it is a question about energy planning.  Nuclear plants provide roughly 20 percent of the United States' current electrical production.  In France, that figure is closer to 80 percent.  Turning that train around cannot happen overnight.

It could, however, happen over a longer period of time -- if we want it to. 

Fukushima is not Chernobyl.  But however bad the crisis in Japan ends up being, it should now be as clear as ever that when it comes to energy, we face hard choices. 

These choices are not necessarily dichotomies.  We can solve climate change, and nuclear power may be part of that solution -- or it might not, or it might be only for awhile.  Natural gas certainly will play a role.  Carbon capture and sequestration holds promise, if we are willing to pay the higher prices and energy penalties the technology entails.  Renewables are always there.  The number of possible resource mixes, in short, for energy production is virtually limitless.

The question, then, is not:  "Whether nuclear power?"

The question is:  "What do we want our energy future to be?"  And, correspondingly:  "Will we plan for that future, or will we leave it to chance?"

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

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

-Lincoln Davies

Junk Politics

Currently the United States House of Representatives’ Energy and Commerce Committee is considering legislation that would strip the EPA of its power to use the Clean Air Act to regulate greenhouse gases.  Earlier this week, Rep. Henry Waxman (D-Calif.) offered an amendment to that proposal.  Regardless of how Congress decided to deal with the EPA’s regulation under the Clean Air Act, Waxman wanted to put Congress on record in accepting the scientific finding that “warming of the climate system is unequivocal.”  The Committee voted down the amendment by a vote of 20-31.  No Republicans on the Committee voted for the amendment.

While it seems there are many reasons to worry about the EPA regulating greenhouse gases, particularly through the Clean Air Act, the Committee’s rejection of climate science is disturbing.  While certainly, there is a lot of disagreement among Americans about the science behind climate change, there is little dispute among scientists.  With its vote, the Committee not only parted ways with the EPA and the Intergovernmental Panel on Climate Change but also with the National Academies of Science, the InterAcademy Council, and the American Association for the Advancement of Science, just to name a few among many.

Certainly, the Committee’s vote did not go unchallenged (see the video posted below as an example).  Still, while there is a lot of banter in politics about junk science, it seems the larger problem is junk politics.

 -- Brigham Daniels

 

Learning from Another Worst-Case Scenario

In my climate change class, I have become accustomed to saying that “nuclear energy has to be on the table” as an alternative source of energy.  It has been an easy thing to say as it appeals to the political conservatives I have in the room and generally appears reasonable to others in light of the grave risks of climate change that we discuss in class.  Now I ask myself, how does Japan change things?  Do I still espouse the view that nuclear energy should be among the energy alternatives that we seriously consider and likely pursue? 

One thought that I am having is that, as we make energy policies, our decision-making processes must identify and analyze worst case scenarios.  As we learned with the BP oil spew (I can’t call it a spill when it wasn’t) and now this, worst case scenarios really can happen.  Also, the events in Japan are changing my thinking about the human health and environmental risks of nuclear energy.  I must have drunk some of the industry’s Kool-Aid on the safety of nuclear plants because I had become accustomed to thinking that the most significant risks were in waste disposal. 

Also, like the BP oil spew, this tragedy brings me back to the pressing need to reduce our energy use.  Energy efficiency is not only the SAFEST energy source, but also the most abundant, cleanest, cheapest, and fastest.  For a primer on energy efficiency policy, I recommend viewing “Clean, Cheap, Plentiful: Energy Efficiency” a video produced in late 2010 by International Rivers.  Consider this statement made in the video by Dr. Art Rosenfeld, who has been called the father of energy efficiency:

"If we had kept up the rate at which… electricity was growing in 1973, 5% a year…[then today] every eight miles between the Mexican border and San Francisco, there would be a nuclear power plant. Now obviously that didn’t happen. In fact, there are 2 instead of 400."

Now that should motivate some energy efficiency, shouldn't it?

- Lesley McAllister

A Scalpel or a Sledgehammer? Preserving Environmental Protection in a Down Economy

A recent slate of reports have highlighted Congressional efforts to curb spending on environmental matters in order to prevent further deterioration of the economy.  A House subcommittee recently voted to block EPA authority to regulate greenhouse gas emissions, asserting that such authority would drive up energy costs and ship jobs overseas.  Leadership in the House recently proposed cutting $1.2 billion (21 percent) out of the National Oceanic and Atmospheric Administration's satellite program budget - a program used for hurricane and weather tracking.  NOAA head Jane Lubchenco recently stated that this action would cause NOAA to "inevitably have a gap" in storm tracking and warning capacity. Paper and chemical industries have called on Congress to assess the cost of regulatory oversight, claiming that duplicative and burdensome regulation should be eliminated to avoid a loss of competitive advantage and preserve jobs in those industries. Congress has even taken aim at light bulbs, calling for a repeal of legislation mandating the use of more efficient bulbs. These are just a few of the many legislative proposals coming out of Congress that cut funding for environmental protection (for others, see "Losing the Future: House Republican Budget Cuts Would Strangle Innovation"). 

Current levels of Congressional spending are unprecedented and unsustainable.  For environmentalists, who focus on sustainability of natural resources, it would seem quite consistent to express similar concern over the sustainability of the economic system that gives us the luxury to protect the environment in the first instance.  Yet when high government spending and economic downturn overlap, difficult choices arise over which environmental protections to maintain.  Spending on environmental protection may very well be duplicative and inefficient in some cases, such as when special interests procure wasteful subsidies - money that would be better allocated elsewhere. And often the parties complaining about environmental protection expenditures actually add to those expenditures, by increasing administrative costs through continual judicial challenges to environmental regulations. Perhaps of greater concern is the fact that an economic downturn allows the evisceration of appropriately allocated environmental protection resources under the guise of legitimate concerns over government spending. So, how can we use a scalpel instead of a sledgehammer?  How can we preserve legitimate environmental protection interests while recognizing the need to move toward an economic policy that acts in a more fiscally responsible manner? Is it too much spending or rather too much inefficient spending? Where do environmental priorities rank when deciding where to tighten the belt?

- Blake Hudson

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

Speaking of looking both forward and back in environmental law, a case study in regulatory response to energy development is rapidly unfolding.  Last week, the New York Times ran several stories on state and federal responses to a rapid expansion of natural gas extraction from shales—an expansion enabled by a technique called hydraulic fracturing (also called "fracking" or "fracing").  In those articles, the Times worried that the wastewater from gas wells in the Marcellus Shale (which underlies New York, Pennsylvania, and other parts of Appalachia) is more radioactive than suggested by New York's recent comprehensive environmental impact statement on high water volume fracking.  The Times also suggested that wastewater treatment plants might not be adequately treating the water from these wells.  Pennsylvania's Department of Environmental Protection promptly struck back on Monday, announcing the results of 2010 in-stream water quality testing that "showed levels at or below the normal naturally occurring background levels of radioactivity" and asserting, "We deal in facts based on sound science."  The Times has also expressed concerns that the EPA—which has embarked upon a federal study of the effects of hydraulic fracturing on groundwater—might bend to industry's and energy states' requests to narrow the scope of its study. In testimony to Congress in the midst of the Times's investigative series on fracking, Administrator Jackson indicated that the EPA would explore radioactivity concerns. 

As the recent focus in the news highlights, states and the federal government have begun to pay more attention to fracking as it expands.  New York has taken a somewhat precautionary approach under its Environmental Quality Review Act—conducting the lengthy state environmental impact statement mentioned above and holding off on granting permits to high water volume fracking operations.  Pennsylvania, on the other hand, has aggressively forged ahead with gas development while beefing up some of its environmental regulations.  And it appears that gas may soon receive an even more favored status in Pennsylvania; on Wednesday, an organization that has consistently expressed concerns about the safety of fracking reported that Governor Tom Corbett has granted the head of Pennsylvania's Department of Community and Economic Development the power to "expedite any permit or action pending in any agency where the creation of jobs may be impacted." 

If you wish to follow the unfolding regulatory saga, the EPA's Hydraulic Fracturing site offers periodic updates on the proposed scope of the EPA's study of hydraulic fracturing and the timeline for that study.  Pennsylvania's Department of Environmental Protection posts frequently with statistics on wells drilled and regulatory updates in the fracking area (scroll down after following the link), and New York's Department of Environmental Conservation's regulatory activities related to shale gas drilling can be located on the agency's Marcellus Shale page.  For any professors wanting good fracking graphics, the New York Times has a rich set of pictures and videos.  In addition to offering an interesting case study in regulatory response, fracking involves a rich array of environmental regulations.  The Resource Conservation and Recovery Act, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Air Act, and Clean Water Act (among others) all come into play under certain fracking scenarios:   Chemicals must be transported to and used on site, wastewater must be disposed of—typically through POTWs or in underground injection wells (or possibly land application), and rigs and other on-site equipment generate air emissions. 

-Hannah Wiseman

Plater on Deepwater Horizon and TVA v. Hill

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

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

The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster.  Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.

The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment.  As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today.  The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."

Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).

His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).

If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.

-Lincoln Davies

DeChristopher’s Actions

Earlier this week, Tim DeChristopher was found guilty by a Utah jury for unlawfully interfering with a public auction for oil and gas leases on federal lands near national parks in southern Utah.  In many ways, the result was not surprising because there is little dispute that DeChristopher posed as an oil man and made and won bids on leases with no intention of paying for them.

Despite the clear cut nature of his case, this trial attracted national and even international media attention, including the New York Times, the Los Angeles Times, and the Guardian, to name a few.   The reason for all the attention boils down to DeChristopher’s purpose in participating in the auction—for him it was a form of environmental protest mainly relating to climate change.  Particularly from environmental quarters, DeChristopher’s trial is a story of an environmentalist so committed to combating climate change that he was willing to serve federal prison time if that is what it took to make a difference, see Time's Eco Centric Blog, Bill McKibben on Grist, and Robert Redford on the Huffingtonpost as examples.  This line of thinking paints DeChristopher's actions as heroic—transforming him into something of a Gandhi for the planet. 

To me the narrative of DeChristopher as noble activist misses the point.  While certainly there is little dispute that DeChristopher’s actions will land him in prison and that he is willing to go there due to his beliefs, his actions are something to bemoan rather than celebrate. 

First, while I respect his ideals, it is hard to see his actions as anything other than misguided.  Even in the most generous light, how does posing to be an oil man and making fake bids on gas leases amount to anything but an empty symbolic gesture?  There is little doubt that these oil and gas reserves are very modest and perhaps worthless.  Why did he pick that fight?  When it comes to climate change, aren’t there a bazillion more pressing problems than these gas leases?   

Second and more importantly, even if these oil and gas leases should warrant our attention, there are plenty of ways to oppose them that are not only legal but also much more likely to prove successful than the route DeChristopher took.  The leases were vulnerable to a number of significant political and legal challenges.  Interestingly, these alternative tools—not DeChristopher’s actions—have at least stalled and in many cases stopped most of the leases at issue (and many others as well).  DeChistopher threw himself on the road when he could have just helped to build a much more effective road block.   Sure he wouldn’t have gotten all the press, but he would have been more likely to make a difference and done this without risking prison time.  DeChirstopher’s  methods do not amount to heroism.  Instead, they are silliness.

Third, he did not need to break the law to make his point.  Why did he have to pose to be someone he wasn’t and lie to the federal government during the auction?  Even if all he wanted to do was protest, aren’t there many other ways to protest that would not have left him legally vulnerable? 

DeChistopher made some mistakes.  His empty gesture, his backwards strategy, his lies, and entanglement with the law were all mistakes.  Yet, instead of trying to find a quiet way out, he held press conferences.  Instead of owning up, he embraced the celebrity of the moment.

Certainly, DeChristopher’s actions have lessons for activists.  Unfortunately, in the rush to praise his good intentions, the real lesson has been lost.  As admirable as we might find his ideals, we need to understand his actions are not admirable.  They are far from it.  After his trial, DeChristopher invited others who were true to the cause to join him in prison.  I hope activists see this invitation to join him for what it is:  an invitation to join the ranks of the misguided who have squandered their potential.

- Brigham Daniels

Hoping for the Least-Bad in AEP v. Connecticut

The Supreme Court will hear oral argument in its second major climate change case soon.  Argument in American Electric Power Co. v. Connecticut is scheduled for Tuesday, April 19.  The questions presented are (1) whether Connecticut and other plaintiffs have standing; (2) whether plaintiffs’ nuisance claim is preempted by the Clean Air Act; and (3) whether plaintiffs’ claim constitutes a political question. 

I would like to think that this decision, like Massachusetts v. EPA, might, in the words of Georgetown Professor Richard Lazarus, be “stunning” and “A Breathtaking Result for Greens” (see The Environmental Forum®, May/June 2007) but the converse seems much more likely. With the recusal of Justice Sotomayor, the best outcome for greens would appear to be a 4-4 tie.  But how likely is it that the four justices that might possibly rule in favor of plaintiffs on all the questions presented really will? 

It seems, then, that the most that greens can hope for this time around is the least-bad outcome.  My sense of the spectrum from most-bad to least-bad is the following:

1) The Court overrules Massachusetts v. EPA on standing.
2) The Court leaves Massachusetts v. EPA intact, but holds that Connecticut doesn’t have prudential standing (as has been argued by the Solicitor General).
3) The Court holds that plaintiffs' nuisance claim is a political question.
4) The Court holds that plaintiffs' nuisance claim is preempted.

The three worst outcomes listed above embrace the view that climate change policy is not the judiciary’s business.  The final outcome -- holding in favor of American Electric Power Co. on the basis of preemption -- endorses the different view that climate change policy isn’t the judiciary’s business only if the legislative and executive branches have made it their business. I happen to think that we will need all our governance institutions to be able to step up to deal with the problem of climate change, so of the options on my all-bad spectrum, this is my preference.  What's yours?

-Lesley McAllister

Lions, Tigers, and Bears...All Gone?

A recent CNN article described the plummeting population of big cats in Africa, noting that populations have dropped from 450,000 fifty years ago to as few as 20,000 today. Worldwide tiger populations have experienced similar drastic declines, with an estimated 95% drop in population over the past one hundred years - from 100,000 tigers at the turn of the 20th Century to as few as 3,200 today.  Of course, scientists are similarly concerned about the implications of climate change for polar bear populations, not to mention numerous other bear populations around the world. These scenarios raise interesting questions about the significance of "charismatic megafauna" in either spurring environmental protection (cute and cuddly panda bears) or in exacerbating species decline due to the "prize value" of the animal (ivory elephant tusks, tiger meat in Asian markets). 

Charismatic megafauna are often described as species that people "really care about," such as pandas, whales, and bald eagles, to name a few. So what does it say about the status of global biodiversity when we continue to witness precipitous declines in populations of charismatic megafauna?  Perhaps the problem is jurisdictional: lions and tigers are distributed in developing countries with far less stringent environmental protections and where the animal's economic value is far higher when it is dead rather than alive.  The case of mountain lions and wolves in the U.S. lends evidence in this regard, as each (the western mountain lion, at least) is recovering in population size and regaining portions of former habitat presumably due to the (relatively recent) focus on environmental protection throughout their habitat range. But as the polar bear and a variety of other species demonstrate, economic growth and habitat fragmentation also play a key role in the decline of these species.  So, if lions, tigers, and bears are charismatic megafauna that people "really care about," what happens to global resources that people hold in far less regard? 

- Blake Hudson