Environmental Law Prof Blog

Teaching Hydraulic Fracturing

In response to the recent discussion on the Environmental Law Professors' Listserv about teaching hydraulic fracturing, I'd like to provide a few thoughts.  I have been following hydraulic fracturing since 2008, and I learn new things about fracturing daily.  Unconventional oil and gas drilling in the United States (including fracturing of drilled wells) is expanding so rapidly--and state and local regulation is changing so quickly--that it's difficult to provide one consistent and accurate picture.  As of today, though, the following list describes how I would approach a whirlwind classroom tour of hydraulic fracturing: 

1) Hydraulic fracturing has been around for a long time--indeed, for more than half a century--and is used to extract both oil and gas. In Coastal Oil v. Garza, the Texas Supreme Court suggested that fracturing has been applied commercially since 1949.  Oil and gas operators have used hydraulic fracturing in a variety of formations, including tight sands, shales, and coalbeds (see the somewhat controversial EPA study of coalbed fracturing here), among other formations, and the effects of fracturing may vary substantially depending on the type of formation fractured--particularly the depth at which fracturing occurs.  Although fracturing itself is not new, one type of fracturing only emerged within the last several decades and has boomed within the last ten years.  "Slickwater" or "slick water" fracturing, developed in Texas's Barnett Shale in the 1990s, is "new" in several respects:  It often involves the drilling of both a horizontal and vertical well, and it typically requires large volumes of water--somewhere between two and eight million gallons (or between 1.2 and 3.5, depending on the information source) for each fracture treatment--and small quantities of chemicals (about 0.5 percent by weight).

2) Many of the stages of producing oil or gas from a fractured well are identical to conventional oil and gas well development.  An operator constructs an access road and well pad; drills, cases, and cements a well; and temporarily stores on site drilling wastes, including drill cuttings, used drilling mud, and produced water that comes up from the formation when drilled.  The operator then disposes of this waste.  Depending on the state regulation, some waste may be buried on site or applied to certain land surfaces, while other waste must be sent a landfill, disposed of in an underground injection control well permitted under the Safe Drinking Water Act, sent to a wastewater treatment plant, or disposed of through other methods approved by the state.  Depending on state regulation, an operator that drills and fractures a well also completes certain site restoration after drilling and fracturing is finished, as does a conventional developer after drilling.  Fracturing also requires additional processes, however, including withdrawing large quantities of water; trucking or pumping in water and storing it in a pit or tank on site or in a centralized impoundment; trucking chemicals on site and mixing them with water; perforating (punching holes in) certain portions of the well casing (although many conventional wells also are perforated); treating the shale around the wellbore with an acid to clean it; injecting water and chemicals into the well at high pressure to fracture the shale around the well and/or expand existing fractures; injecting "proppant" into the well to prop open the fractures once formed; and capturing and disposing of "flowback" water--the water and chemical mixture used for fracturing, some of which flows back up out of the well.  For a detailed description of the fracturing process and its potential environmental effects, see chapter 5 of the New York DEC's preliminary revised Supplemental Generic Environmental Impact Statement for high-volume fracturing.  For a report on the chemicals used in fracturing, see this House Committee on Energy and Commerce Minority Staff Report. 

3) Fracturing is increasingly common.  Industry estimates that more than 90 percent of gas wells in the United States are hydraulically fractured.   I am not familiar with the numbers for oil, but certain shales with oil--such as the Bakken Shale--have experienced a fracturing boom.  (Shale oils are not to be confused with oil shales, which must be mined to extract oil.)  The rise in fracturing for natural gas has been astounding.  In 2000, the Texas Railroad Commission issued 273 permits for gas drilling in the Barnett Shale.  In 2008, it issued 4,145 permits, and operators received 2,157 Barnett permits in 2010.  In 2008, operators drilled 195 wells in the Marcellus Shale in Pennsylvania; in 2010, they drilled 1,386 wells.  The U.S. Energy Information Administration has a useful map of all shale plays and of shale gas production, much of which so far has occurred in Arkansas, Louisiana, Michigan, Oklahoma, and Texas.   West Virginia's and Pennsylvania's production numbers will continue to rise, and New York will be an important player when the New York Department of Environmental Conservation finalizes the conditions that it will place on high-volume fracturing and begins to approve permits.  Shale oil and tights sands formations also typically are fractured and have generated increased interest in states like Colorado, Montana, New Mexico, North Dakota, and Wyoming, among others. 

4) Portions of the development process for a fractured well are federally regulated.  Operators may not dispose of pollutants into navigable waters without a Clean Water Act NPDES permit, of course.  They are potentially liable under the Comprehensive Environmental Response, Compensation and Liability Act for pollution caused by hazardous substances other than oil or gas, and they must maintain material safety data sheets on site for certain chemicals, as required by the Occupational Safety and Health Act and the Emergency Planning and Community Right-to-Know Act.  (See this recent post summarizing disclosure and the MSDS requirement.)  Operators also enjoy a number of federal exemptions, however, including exemptions of exploration and production (E&P) wastes from subtitle C of the Resources Conservation and Recovery Act (see 42 U.S.C. 6982 (m)(1), 42 U.S.C. 6921(b)(2)(B), and 53 Fed. Reg. 25,446); reporting of annual toxic chemical releases under EPCRA (see 42 U.S.C. 11023(c), which references the document with the Standard Industrial Classification codes to which the reporting requirement applies); and oil and gas pollution from CERCLA liability (42 U.S.C. 9601(14) excludes petroleum and natural gas from the definition of "hazardous substance.")  For the fracturing process itself--injecting water and chemicals at high pressure down the well--an operator also is not subject to the Safe Drinking Water Act unless the operator uses diesel fuel.   See 42 U.S.C. 1421(d).  The EPA currently is developing UIC permitting standards for fracturing with diesel fuel.  If the operator disposes of drilling or fracturing wastes in a UIC well, then SDWA applies.   Operators also must comply with the Migratory Bird Treaty Act and the Endangered Species Act, and the EPA has proposed new source performance standards for VOCs from fractured and re-fractured wells under the Clean Air Act. 

5) State regulations of oil and natural gas extraction--including the fracturing portion of the process--vary.  All states have a variety of casing regulations that typically require casing to extend a certain number of feet below underground fresh water (or require, more generally, casing that protects water), and that the cement used to secure the casing be of a certain minimum strength.  Many states require that pits used to store drilling and fracturing waste be lined, either with clay or a synthetic liner, and some, such as New York, are moving toward requiring steel tanks for waste storage.  States also sometimes regulate the required minimum distance between the edge of the well pad, pits, or the well itself and various natural resources, such as streams and wetlands; others have few of these types of distance restrictions.   Many states have begun to update various regulations or to issue less formal directives to address the rise of gas and/or oil development and fracturing.  See, for example, West Virginia's focus on water withdrawals; Pennsylvania's updated well water replacement, cementing, and casing requirements (58 P.S. 601.208, 25 Pa. Code 78.51, 25 Pa. Code 78.83, and the Pennsylvania Bulletin); and updated fracturing and drilling regulations in Arkansas (see Rule B-19), Montana, Wyoming (click on the plus symbol next to "Chapter 3:  Operational Rules, Drilling Rules"  and then "Section 45. Well Stimulation"), and Louisiana and Ohio (for urban areas).  See also the Delaware River Basin Commission's proposed regulations of fracturing within the basin, Colorado's comprehensive update of its oil and gas drilling regulations, and the extensive restrictions proposed for high-volume fracturing within New York's preliminary revised Supplemental Generic Environmental Impact Statement, for which the comment period is open through December 12.  States increasingly require disclosure of fracturing fluids either to state agencies or the public (or both), as summarized in a recent post, and the EPA issued a letter and subpoena to obtain chemical data for its ongoing fracturing study. 

6) States' enforcement capacities and activity in the oil and gas area seem to vary.  The Arkansas Public Policy Panel, for example, worries that Arkansas is inadequately inspecting and enforcing violations at hydraulically fractured wells in the Fayetteville Shale.  Pennsylvania has substantially increased agency staffing numbers, and the DEP has noted a number of violations--many of which have been summarized by the Pennsylvania Land Trust.  For Pennsylvania DEP reporting of Marcellus enforcement, go to this link and scroll down.  A 1998 Ground Water Protection Council survey describes state agency responses to complaints about alleged contamination from fracturing. 

7) Much of the media attention has focused on the injection of water and chemicals underground for fracturing and potential impacts on aquifers and water wells.  Indeed, there are potential gas migration concerns associated with old and new wells, as suggested by a Pennsylvania DEP draft report on stray gas migration and a recent Duke study.   The activities at the surface may be more important, though--from trucking chemicals to the site (are hazardous transportation regulations adequate?) to mixing them with water on site (are spill prevention and control plans adequate?), preventing blowouts during drilling and fracturing (blowout prevention regulations vary by state), and storing and disposing of flowback water.  Many wastewater treatment plants may not be equipped to handle large quantities of new waste--some of which is slightly radioactive.  The wastewater challenges are perhaps best evidenced by Pennsylvania's recent move away from POTW disposal of flowback water.  In other states, the space in underground injection control wells is filling up (see West Virginia DEP's concerns, for example), thus requiring a move toward alternative disposal methods, additional drilling and permitting of UIC wells, and an aggressive focus on flowback recycling.  For a summary of recent fracturing wastewater issues in Pennsylvania, see this post.

8) Creative lawsuits have emerged.  For an intriguing study of regional regulation of fracturing under proposed Delaware River Basin Commission regulations, and New York's argument that these regulations require an environmental impact statement under the National Environmental Policy Act, see this complaint.  For some initial court rulings on alleged contamination from fracturing in Pennsylvania, see Fiorentino v. Cabot and Berish v. Southwestern Energy Production Company. 

9) The EPA is conducting a study of the "potential impacts of hydraulic fracturing on drinking water and groundwater," with initial results projected to be available by 2012 and a final report in 2014.  The Texas Commission on Environmental Quality is conducting air monitoring around fractured gas wells, as is Pennsylvania. The Shale Gas Subcommittee of the Secretary of Energy Advisory Board also has released a draft fracturing report, which includes policy recommendations, as has Pennsylvania's Marcellus Shale Advisory Commission.  Finally, the State Review of Oil and Natural Gas Environmental Regulations has completed reviews of state fracturing regulation in Louisiana, Ohio, Oklahoma, and Pennsylvania.

This provides only a small slice of the ever-expanding body of fracturing information.  I welcome comments, corrections, and additions.

-Hannah Wiseman

ESA listings announcement

On Monday, the Fish and Wildlife Service announced that it would initiate "status review" for 374 species to determine whether they should be listed as threatened or endangered.  All of the species rely upon aquatic habitats, and all live in the southeast.  The announcement responds to a petition filed by a coalition of environmental groups, including the Center for Biological Diversity.

The announcement is interesting in many ways, but two lessons seem particularly important.  First, the announcement underscores the extent to which aquatic habitats are degraded.  We've made huge strides in managing municipal and industrial wastewater, and we've had some localized but still spectacular successes with dam removals, but we've had far less success addressing the impacts of agricultural runoff, urban stormwater, riparian habitat loss, flow alterations, invasive species, and dams and other structural changes.  The potential listing of several hundred new species illustrates the consequences of those failures, and the pervasive water management challenges we continue to face.

The announcement also suggests that another piece of western water law may be coming east.  For western water law practitioners, there may be no single law more important than the ESA.  Water law courses might emphasize the intricacies of prior appropriation doctrine, but with threatened or endangered species inhabiting just about every major western river system and, in many parts of the west, ribbons of critical habitat running up nearly ever stream valley (check out this site and zoom in on the Pacific Northwest), the ESA dominates many water litigators' dockets.  The east already has seen previews of that importance, with Florida attempting, so far unsuccessfully, to use the ESA as a lever in its dispute with Georgia and Alabama over the Apalachicola-Chattahoochee-Flint system.  With the potential addition of dozens, if not hundreds, of new species, that sort of litigation could become a lot more common.

- Dave Owen

When the Decline of an Endangered Species Hits Close to Home

   
      

 

 

 

 

 

 

When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.

The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.

So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.

- Blake Hudson 

Let's Agree: Texas Wildfires caused by Electrical Issues

I was happy to see that President Obama mentioned climate change in a recent speech, even if it was just a one-liner. As an illustration of how the Republican party is out of touch, he jabbed at Texas Governor Rick Perry with the line that “You’ve got a governor whose state is on fire denying climate change.”

The President’s remark made me wonder just how hot and dry of a summer Texas ended up having. I found two graphics that tell the story well.  In the top graphic, a rank of 1 represents the coldest period, and a rank of 117 indicates the warmest period, in the 117-year record between 1895  and 2011. As you see, Texas and several neighboring states had their warmest summers in 117 years. Only the Pacific Northwest states had cooler than normal summers. (Here in San Diego it was sunny and 70, as always.)

In this second graphic, we see that Texas is in the grip of an Exceptional Drought.  As apparent from the time-elapsed version available here, the exceptional drought has been ongoing since June.

A few days ago,Texas officials deemed the cause of the state’s devastating Bastrup Blaze that began on Labor Day weekend to be "electrical in nature.”  Yes, that seems right.  Electricity generation accounts for about 70 percent of the world’s greenhouse gas emissions. Perhaps we can all agree that electrical issues are to blame. 

- Lesley McAllister

Vermont's Environmental Law Colloquium

Last Friday, Vermont Law School held its second annual environmental scholarship colloquium.  It's a great event.  Jason Czarnezki, who came up with the idea and took the lead in making it happen, and his colleagues do a wonderful job organizing, hosting, and filling their visitors with lots of really tasty locally-grown food.

For me, one of the most interesting panels was an international/comparative law panel with Alex Wang (Berkeley VAP; formerly NRDC in Beijing), Gabriel Michanek (Uppsala University, Sweden), and Du Ming (Chinese University of Hong Kong).  Alex Wang's presentation shed some new light on conventional wisdom about Chinese environmental law implementation and provoked an interesting discussion with Du Ming and with several of the other Chinese environmental lawyers in attendance.  For an American with only a very general understanding of Chinese environmental policy, it was a treat to listen to a dialogue among Chinese environmental law experts, all of them kind enough to keep the conversation in English so the rest of the room could understand.

Gabriel Michanek's presentation and paper addressed the tensions between Swedish and European Union water law.  The paper is short and accessible, and for students of U.S. water law, it offers an interesting study in contrasts and, to a much larger extent, similarities.  In particular, two passages jumped out at me.

First, here's professor Michanek's description of the European Union's Water Framework Directive:

First, WFD recognizes the complexity connected with management of waters. The approach is holistic. It focuses on the status of the entire hydrologic system in a river basin, including its rivers, lakes and sea coast waters. The national territories are divided into water basin districts for which special water district authorities are in charge. Furthermore, it applies to all sorts of activities that may impact the quality of waters, not only different kinds of polluting activities but also water operations, such as constructing dams and other installations in water (e.g. for extracting hydro power), taking out water for irrigation or consumption, drainage of wetlands or other conducts altering water levels or water courses.

To U.S. water law scholars, who spend a lot of time lamenting the absence of holistic approaches to U.S. water resource management, that may sound awfully nice.  The EU approach also involves an emphasis on adaptive management, including periodic permit review, which also sounds like an advance on U.S. approaches.

But then we get to the implementation:

The Swedish legal system does not provide for efficient implementation of water quality standards and programmes of measures determined in accordance with the WFD. This is due the construction of Swedish legislation, e.g. the weak legal status of programmes of measures, lack of enforcement mechanisms, none or limited legal effect of environmental quality standards and strong rights for license holders. The failure to implement [also follows] from inadequate management in practice, not least the reluctance among environmental authorities to make use of the legal right to initiate reviews of outdated licenses for polluting activities.

The Swedish implementation deficits promote conservation of established rights to pollute and to exploit waters. This is contrasting to the basic idea behind WFD adaptive planning. ... [I]t is not possible to realise the WFD adaptation if the legal system, like the Swedish, counteracts new requirements.

This is just a sample, and there's much more to the discussion.  And while the paper focuses on Sweden, my sense, from side conversations with Professor Michanek, is that Sweden's difficulties are far from unique.  Sadly, it seems, some water management challenges may be rather universal.

The full set of drafts from the conference is available here.

-Dave Owen

In Case You Missed It - The Week of September 18 to September 24

* Scientists maintain a renewed focus on groundwater pumping as a contributor to sea level rise.

* 62% of deforested Amazon land ends up as cattle pasture.

* Could experts be wrong about population growth?

* Do regulations really kill jobs? One perspective here. Also see Dan Farber's post on the topic here for additional perspectives.

* NOAA study finds that controlled burns after BP Oil Spill may have emitted up to nearly five million pounds of black carbon.

* The largest dam removal in U.S. history began last week.

Climate Change Versus Clean Energy: How Can We Move Forward?

Working on climate change over the last several years has consistently pushed me to expand my comfort zone and explore new frontiers.  Although I first approached it as an international law scholar, I soon became intrigued by the transnational networks of localities, states, and provinces taking action and the nuances of their place-specific strategies.  More recently, as clean energy becomes the more politically viable proxy for engaging climate change (for example, in President Obama’s latest State of the Union address), I’ve begun learning the complex fabric of energy law and the uneasy energy/environment intersection (with the help of a really interesting discussion of the intersection by Lincoln Davies).  I find myself immersed in new challenges again, as I try to wrap my head around SmartGrid, energy segregation, and the role of small cities and suburbs in addressing climate change even as I also worry about the turn towards geoengineering in the desperate search for ways to address climate change and nascent and fragmented accompanying governance approaches and more generally about the lack of viable international-level approaches for getting emissions down at the pace scientists say are needed.

As part of all of this, I’ve participated in some really exciting discussions these past few weeks of both climate change and clean energy where I’ve learned a great deal and been impressed at how interdisciplinary the conversations are becoming.  But I always walk away from climate change and clean energy dialogues feeling very differently: depressed after the climate change ones and buzzing with new possibilities after the clean energy ones. 

While there are significant new developments on climate change—I learned so much from being included in the conversation at the conference hosted by the University of Melbourne about Australia’s proposed climate change law and the resulting expert submission—the consensus always seems to be that nothing happening on the mitigation side is close to enough.  In fact, in his keynote address following our climate change panel at a recent conference at Case Western on whether there is a crisis in international law, Richard Goldstone said that while there was not generally crisis in international law but rather in its implementation, climate change was one of the areas of real crisis.  I agree.  Each year, I understand new pieces of climate change law better, and the more I know, the more discouraged I become about the big picture (we are already well above 350 parts per million of carbon dioxide in the atmosphere—around 390 as of August 2011—with no meaningful plan for staying below the revised goal of staying below 450 parts per mission).  I don’t know how to inject the nuance I think is needed into the politicized discussion, I don’t know how to garner the requisite political will, and it will be really hard to catalyze the creative governance approaches needed to transform the action going on outside of the international and national levels into a viable transnational strategy.

With clean energy, huge challenges also loom, but they somehow feel more manageable.  Working on the marriage between science, technology, engineering, public policy, and law needed to advance these approaches is exciting. People across the political spectrum often are able to embrace the win-wins that energy efficiency paired with new technology can bring.  We have a long tradition of governmental involvement in infrastructure in this country, and even if the politics and money aren’t yet there, it seems conceivable that they will get there and that we will invest in our grid.  After a recent Smart Grid conference here at the University of Minnesota, I wanted to go read, take classes, and maybe even take on yet another degree. 

The problem is that I know that all this excitement doesn’t solve the looming crisis of climate change.  Clean energy solutions can’t replace meaningful progress on climate change—they are unlikely to bring mitigation quickly enough and they often don’t help focus energy on adaptation.  But they do help because they get more mitigation than would have happened otherwise.

So where to go from here? In this country, we have a presidential election going on (yes, I know it’s not for over a year—but we’ve had a lot of debates and stump speeches already).  I hope we can find a way to stop fighting and talk about these challenges in a meaningful way that cuts across what divides us.  We need to make progress on both of these issues.  Clean energy shouldn’t get buried in our fights because there is broad agreement on the need to move forward as we get increasingly behind other countries.  And we need to stop focusing on what we disagree about on climate change science, and focus on what it would mean to be cautious in the face of risk (since almost everyone acknowledges at least some level of risk). On my discouraged days, I have no idea how we can climb this mountain.  But on the good days, like this morning, I have hope that we can be thoughtful and move forward if we keep talking, acting, and building bridges (and transmission lines for renewables) that go somewhere.      

Hari Osofsky

Cross-posted at IntLawGrrls.

The Latest on Chemical Disclosure

You may have thought that you'd get a week off from hearing about hydraulic fracturing, but you won't.  Sorry.  For anyone teaching about chemical disclosure under the Emergency Planning and Community Right-to-Know Act and the Occupational Safety and Health Act, hydraulic fracturing provides a nice case study.  EPCRA and the OSH Act require oil and gas operators to keep material safety data sheets on site for certain hazardous chemicals in certain quantities, but this doesn't give the public much access to information, and some of the chemicals used do not fall within the OSH Act's and EPCRA's hazardous definitions. States have, however, jumped on the disclosure bandwagon and have begun to augment these limited disclosure requirements.  Texas passed one of the more comprehensive laws this summer, requiring disclosure both of the OSHA chemicals and all other chemicals used in fracturing--and that the chemicals be disclosed to the public, not just regulators.  Arkansas (see Rule RB-19), Colorado (click on "Final Amended Rules," then "COGCC Amended Rules," then "200 Series General Rules" and search for "chemical inventory"), Louisiana, Montana, North Dakota (see Rule 43-02-03-27.1), and Wyoming (click on the plus symbol next to "Chapter 3:  Operational Rules, Drilling Rules"  and then "Section 45. Well Stimulation") for example, have implemented or proposed to implement similar requirements, although not all of these states require disclosure of all chemicals or require disclosure to the public; some only mandate disclosure to certain state agencies and health officials. New York is similarly proposing to require disclosure in its preliminary revised Supplemental Generic Environmental Impact Statement. 

Interestingly, several states require disclosure of chemicals through the voluntary disclosure website, FracFocus.org, recently formed by the Ground Water Protection Council (a group of state regulators) and the energy industry.  Many of the state disclosure rules allow operators to claim trade secret status for chemicals, although some provide exceptions to trade secret protection when disclosure is needed in emergency situations.  Texas allows landowners of sites where hydraulic fracturing occurs and those next to the sites, as well as certain state agencies, to appeal trade secret status claims.  It appears that states are slowly coming to understand that the public wants to know about the chemicals used in oil and gas development, which is now closer to our backyards as new technologies allow extraction in previously undeveloped formations. 

-Hannah Wiseman

A Win for the Insurance Industry: No Duty to Defend against Climate Change Nuisance Claim

Remember the Kivalina v. Exxon Mobil Corp. case? Well, the Ninth Circuit hasn’t issued a decision, but the Virginia Supreme Court handed down an important ruling that relates to the case last Friday. The Virginia court ruled that the insurance company of a Kivalina defendant didn’t have a duty to defend against Kivalina’s claims because there was no "occurrence" or "accident" that triggered a duty to defend. The case is AES Corp. v Steadfast Insurance Co. (decision here).

The Kivalina case itself had been stayed pending the US Supreme Court’s decision in Connecticut v AEP this past July. Presumably, there has been additional briefing regarding that case’s impact, and the Ninth Circuit will take the case up again soon (and likely send plaintiffs to state court!).

-Lesley McAllister

NEW BLOG - "brazenandtenured–law politics nature and culture"

Our friends at the University of Colorado Law School, Professors Sarah Krakoff and Pierre Schlag, have started a new blog, "brazenandtenured." As Professor Krakoff states, the blog is unique and is distinct from many other environmental law blogs in that it "is more in the nature of mini-essays, commentary and reviews than news or news analysis.  Also, while it often touches on environmental and natural resource subjects, it is not confined to those." They have already posted some very interesting items, and I hope you will consider subscribing.

- Blake Hudson  

In Case You Missed It - The Week of September 11 to September 17

* Kaid Benfield, who directs the Sustainable Communities and Smart Growth program at the Natural Resources Defense Council, co-founded the LEED for Neighborhood Development rating system, and co-founded of Smart Growth America reflected in The Atlantic on the legacy of 9-11 for communities and built environment.

* The U.S. Environmental Protection Agency announced “the release of Plan EJ 2014, a three-year, comprehensive plan to advance environmental justice efforts in nine areas, including rulemaking, permitting, enforcement, and science.”

 * The U.S. Environmental Protection Agency announced that it will not meet its September 30 deadline for issuing greenhouse gas emissions regulations regarding power plants and other major sources.

* A Minnesota wildfire in the Boundary Waters area has burned 100,000 acres, which is the largest wildfire in the state in recent history.

* Siemens, which is the biggest engineering conglomerate in Europe, announced that it would stop building nuclear power plants worldwide after the German government decided to phase out nuclear power by 2022.

* House Republicans questioned whether the White House rushed approval for a government loan guarantee for Solyndra Inc., a solar panel manufacturer that has since filed for bankruptcy.

* NOAA and FWS have revised regulations related to Loggerhead sea turtle conservation, dividing the species into nine different population groups. It is thought that the division will allow the government to reduce threats to the turtles by increased focus on the localized challenges that they face. 

Yucca Mountain Dies, or Maybe It Doesn’t

Last Friday, the Nuclear Regulatory Commission added another twist to the already rather messy legal saga of Yucca Mountain.  The Commission deadlocked in a vote on whether the Department of Energy had the legal ability to withdraw its application for site approval.  That leaves the project’s legal status in doubt, and the near-inevitability of additional litigation further clouds the picture.  The project’s financial status, however, remains clear, and the NRC, citing “fiscal limitations,” also voted to close down its review of DOE's license application.

Based on press coverage and political rhetoric, one might think that political considerations alone are driving Yucca Mountain’s apparent demise.  The administration’s position, the story goes, derives from Harry Reid’s clout and Nevada’s swing state status.   But while there’s no doubt  that the political calculus is very, very important, there is another part of the story.  The legal hurdles to continuing with the Yucca Mountain project were substantial, and perhaps even more substantial than the legal complications involved in shutting it down.

Before I explain, a little disclosure.  From 2003 to 2007, I worked on the legal team Nevada had assembled to fight the repository.  What follows reflects my own judgment and isn’t an attempt to state Nevada’s legal position, but I, like any lawyer, probably view my own former clients’ positions through rose-tinted lenses.  Even with some accounting for my own biases, however, I still think Yucca Mountain was in legal trouble.

To understand why, one needs to know a little about the curious legal structure of the licensing process (discussed in more detail here).  In 1982, in the Nuclear Waste Policy Act, Congress initially set forth a process for choosing a disposal site for high-level nuclear waste.  The Department of Energy was to select a site and to develop and, if appropriate, submit a license application for that site, and the Nuclear Regulatory Commission was to review that application.  The NRC would evaluate the consistency of the application with safety standards set by EPA and by the NRC.  In 1987, Congress designated Yucca Mountain as the sole site to be studied for a national nuclear waste repository.  Then, in the Energy Policy Act of 1992, Congress imposed some additional constraints on the process of setting safety standards.  Most importantly, the standards were to be “based upon and consistent with the findings and recommendations" in a report prepared by the National Academy of Sciences.

That last requirement proved crucially important.  In their first attempts at Yucca Mountain safety standards, EPA and the NRC tried to set standards that would expire after 10,000 years.  That approach would have meant that even if DOE’s modelers predicted spikes in radiation levels after 10,000 years, the repository still could be licensed.  But in NEI v. EPA, 373 F.3d 1251 (D.C. Cir. 2004), the D.C. Circuit held that the agencies’ approach was not “based upon and consistent with” the NAS report, which had called for sustaining the standards through the time period with the highest predicted doses.  The court’s decision sent EPA, the NRC, and DOE back to the drawing board, and without a safety standard, the repository could not be licensed.

The decision put EPA and the NRC in a difficult spot.  The simplest response to the D.C. Circuit’s decision would have been to simply extend the pre-10,000 year safety standards through the period of peak dose.  But if EPA and the NRC did that, the license application would almost surely fail, for DOE’s models predicted doses would remain well above that standard for hundreds of thousands of years.  Only during the initial period, when the modelers predicted that engineered containment systems would keep the waste isolated from groundwater, were doses predicted to remain low.  In the Bush Administration, at least, passing a standard that the site couldn’t meet was a non-starter.   But writing higher standard the license application could actually meet would have meant abandoning long-established nuclear regulatory practices, disavowing past reasoning, and creating other potential inconsistencies with the NRC report, among other problems.  In a 2005 proposed rule, EPA tried that latter approach, and the result was a two-tiered standard (15 millirems before 10,000 years; 100 millirems afterward) that agency lawyers cannot have had any desire to defend.  In 2008, the Bush Administration finalized the proposed standard, retreating from some of the legally questionable rationales but retaining a dramatic difference between the pre- and post-10,000 year standards.  That would have left the Obama Administration with a difficult legal choice if it had wanted to proceed with the repository: it could try to license the repository under dubious legal standards, or could withdraw those standards and try to substitute something else.

The point of all of this is not that these legal challenges actually are driving Yucca Mountain’s demise.  Politics and policy preferences probably mean more to this presidential administration—to any presidential administration, really—than the technical constraints of environmental law.  But they clearly did complicate the Bush Administration’s efforts to promote the repository.  And they do provide a reasonable justification, if not the actual justification, for the Obama Administration’s unwillingness to do the same.

- Dave Owen

From Oil To Plastic and Back Again

It is easy to think about the utilization of finite resources as a linear process.  How do we reverse the destruction of natural capital and the inefficient allocation of the finite land base caused by urban sprawl? Well, there is Detroit, where the city is sprawling inwards as formerly developed lands are returning to their natural state (albeit not under favorable human welfare conditions). Similarly, once we convert finite petroleum resources to other products, how can we reclaim the product to extend the life of the finite petroleum resource base?  Yet this is exactly what one plant in Ohio is doing with plastic - providing a way for you to "refuel your car with old plastic trash." The plant, built in part by Vadxx Energy, plans to use a process called "thermal depolymerization" that can create a new domestic oil and natural gas supply of 80,000 barrels a year by converting old bottles from landfills.

Fortunately for landfills and those of us who care about the waste disposal problem facing the U.S. and the world in general, there has been an increase in investment into these types of projects. Once again demonstrating the complexity of attacking one environmental problem with a seemingly effective solution, however, plastics as fuel can give rise to other environmental issues. I often tell my class that for all of the problems associated with plastic, at least it does serve the purpose of sequestering carbon. Perhaps I can no longer say that, though I can be less concerned about landed disposal of plastic waste. Often in any environmental policy choice it seems we can't win without losing something - often forced to choose the lesser of two evils. But perhaps Michael Coren said it best, "as long as we're using oil, we might as well find ways to reuse it."

- Blake Hudson 

The Stabilization Wedge Game, Updated for 2011-12

As part of introducing my climate change class to mitigation, we play Stephen Pacala and  Robert Socolow's Stabilization Wedge Game.  It works well, but it requires some updating.

A little background:  In 2004, Pacala and Socolow (P&S) published an important article in Science that conceptualized the world’s need to reduce greenhouse gas emissions as the task of choosing wedges, where each wedge is a strategy or technology that would avoid the emission of 25 gigatons of carbon (or about 92 gigatons of CO2) over a 50 year period.  P&S posited that seven wedges would be necessary to stabilize the atmospheric concentration of carbon dioxide below 500 ppm.  They set forth 15 wedge possibilities: for example, doubling the fuel efficiency of the world’s cars; increasing by 50 times our current solar power generation capacity; and eliminating tropical deforestation.  To make the ideas in the article accessible to all, they developed the Stabilization Wedge Game, in which groups discuss wedge options and choose which seven they want. (And don’t miss the hilarious music video below!)

I started using the game in my climate change law class in 2008, and it has worked well with some necessary updating. In 2009, the authors themselves updated the game.  Because emissions had grown since 2004, the game was updated to require that players choose eight wedges rather than seven.  In my class, we still play the game with eight, but it is important to know that other scientists have found that many more wedges will actually be needed.  Joe Romm has blogged that we need 12 to 14 wedges in four decades to keep CO2 concentrations under 450 ppm.  In 2010, another article in Science argued that P&S were too conservative in their baseline assumptions and that 18 to 25 wedges are actually needed. 

Also, it is not just the number of wedges, but also the substance of wedges that requires updating. Here are the changes that I made this year, drawn primarily from blog posts here, here and here by Joe Romm at Climate Progress.

1) I eliminated several of the original wedges, namely Carbon Capture and Storage (CCS) Hydrogen, CCS Synfuels, and Wind Hydrogen.  CCS and hydrogen technologies have not turned out to be as feasible as the authors thought.  I retain the wedge that involves CCS from traditional fossil fuel plants.  

2) I added the following 4 wedges:    

Forest storage: A wedge is gained by replanting forests over an area the size of the continental US;

Wind for vehicles: A wedge is gained by installing 2000 GW of wind capacity to power plug-in hybrids and electric vehicles.  This amount is about 40-times the wind capacity we have today;

White roofs: Turning all of the world’s roofs and pavements “light” over the next 20 years provides an albedo change that offsets about a wedge-worth of emissions;

Concentrated solar power (solar thermal electric): A wedge requires 2000 GW.  Currently about 1.2 GW are online worldwide, see list of plants worldwide.

If you want to use this game in your classes, you might also be interested in a previous post of mine on the Teaching Climate Law blog with some further ideas for discussion after the game is played. 

- Lesley McAllister

 

Looming Preemption Battles in Appalachia?

The Wall Street Journal reports that two ballot measures in Pennsylvania--in Peters Township and State College--have proposed to ban natural gas extraction, and the town of Warren is considering a similar ban.  The Journal believes that these are the first voter-led anti-gas provisions.  Several other Pennsylvania, New York, and West Virginia towns, including Pittsburgh, Ithaca, Morgantown, and Oneonta, among others, already have attempted to ban gas extraction or hydraulic fracturing for gas through city council, town board, or common council votes.  It is not clear, though, that these bans-- whether enacted by town governments or citizens--would hold up in court if challenged. Indeed, a county court already has struck down the attempted ban by Morgantown, West Virginia.

Both Pennsylvania and New York expressly preempt local regulation of oil and gas extraction.  Pennsylvania's Oil and Gas Act reads: "Except with respect to ordinances adopted pursuant to the ... Municipalities Planning Code, and the ... Flood Plain Management Act, all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded." 58 Pa. Cons. Stat. 601.602 (2011) (emphasis added).  New York similarly provides that "[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law."  NY Envtl. Conserv. 23-0303 (2011). The Supreme Court of Pennsylvania has determined that towns may enact "traditional zoning regulations that identify which uses are permitted in different areas of the locality, even if such regulations preclude oil and gas drilling in certain zones."  Range Resources Appalachia LLC v. Salem Tp., 600 Pa. 231, 236 (2009) (citing Huntley & Huntley, Inc. v. Borough Council of the Council of Oakmont, 600 Pa. 207, 223 (2009)).  Municipalities may not, however, "attempt . . . to enact a comprehensive regulatory scheme relative to oil and gas development within the municipality."  Range Resources, 600 Pa. at 240.  The New York Supreme Court of Erie County similarly has held that a town may not impose bonding and permit fee requirements only on oil and gas wells because this impermissibly singles them out and is preempted by New York's Environmental Conservation Law.  Envirogas, Inc. v. Town of Kiantone, 112 Misc.2d 432, 434-35 (N.Y.Sup. 1982).  West Virginia, in contrast, does not have a clear preemption provision for local regulation of oil and gas extraction, but in August, a county court determined that the state has "assumed control of a particular subject of regulation" by enacting a "comprehensive regulatory scheme" for environmental control of oil and gas drilling--a scheme solely implemented by the West Virginia Department of Environmental Protection that does not leave any room for local regulation according to the court. 

Yet another interesting jurisdictional conflict in gas regulation may arise from the Delaware River Basin Commission's proposed regulation of fracturing in the Basin.  These regulations would require bonding requirements and fees in addition to state bonding mandates (see page 21--"The financial assurance required by this Section is separate from any financial assurance provided to the host state in accordance with state regulations") and a nonpoint source pollution control plan for certain well sites--a plan that the Commission concedes may require an "Administrative Agreement between the Commission and the host state." The DRBC regulations also would require gas well pad sites to be set back 500 feet from wetlands, water bodies, and other water sources, whereas Pennsylvania, a member state of the Delaware River Basin Compact, only mandates a 100-foot well setback from wetlands greater than one acre and from streams, springs, and bodies of water.  58 Pa. Cons. Stat. 601.205(b) (2011).  New York, in turn, (also a Compact member) would require a "site-specific" assessment only for well pads within 150 feet of streams, storm drains, lakes, or ponds.  Whose regulations will win?  Very likely the DRBC's for gas development within the Basin, if and when its regulations emerge from litigation.  New York and Pennsylvania, after all, agreed to be part of the Delaware River Basin Compact, which provides that state projects affecting water resources and "related to powers delegated to the commission . . . shall be undertaken in consultation with the commission."  The states also are voting members of the DRBC and could object to the regulations through the voting process, and, as New York has suggested, rules of the DRBC are of a federal nature (see New York complaint arguing that "[t]he development of the DRBC Regulations authorizing natural gas development within the Basin under the Compact . . .  is a 'federal action"); these rules likely sit on a higher peg than state regulations. 

Questions about the interaction between federal and/or regional regulation of gas drilling and certain state regulations, as well as state preemption of local controls on gas drilling, will be increasingly important, particularly as New York moves slowly toward allowing high-volume hydraulic fracturing in the Marcellus Shale--an activity not yet permitted in the state. 

-Hannah Wiseman

 

In Case You Missed It - The Week of September 4 to September 10

* Government projections warn that 1600 properties in Wales could be completely inundated by rising sea levels.

* Arctic sea ice area reached its lowest point since satellite tracking in 1972:  

 

* Average per capita water use has dropped by 30% in Las Vegas.

* The Annual Review of Marine Science has issued a report on climate change impacts on marine ecosystems.

* A large scale electricity blackout in the U.S. Southwest and Mexico is a "reminder of power grid vulnerabilities."

 

The Problem with State Records

I recently started a project to identify state environmental enforcement at oil and gas wells, including hydraulically fractured wells.  In trying to locate this information, I was surprised to discover states' divergent methods of collecting and sorting information.  Pennsylvania's Department of Environmental Protection, for example, lists on its website all violations and enforcement activity (scroll down) in the oil and gas area and describes this activity in enough detail to show the activity that caused the violation as well as the laws that were violated and/or enforced in each case.  It also describes which enforcements occurred in the Marcellus Shale--the formation in the state in which hydraulic fracturing is common.  A New York Department of Environmental Conservation staff member, on the other hand, indicated that New York does not maintain a separate database of enforcements and violations.  Many other states appear to keep separate enforcement records but only in paper form.  (North Dakota and Montana, for example, are just now switching to an online system, and Texas appears to have some oil and gas enforcement data available online, but it has no easily accessible online data for the many cases with violations but no enforcement.)  Colorado (see "Orders") similarly posts formal orders and associated documents online, while requiring more extensive searches for the many violations that do not lead to formal orders.  Ultimately, compiling a  list of environmental law violations at oil and gas wells in most states is quite difficult.  In many cases, one would have to search thousands of individual well files and look for violations in each in order to make this list.  Perhaps members of the public should have to invest in this rather unwieldly effort if they are genuinely interested in knowing about enforcement. But agencies, who are familiar with this information and produced it in the first place, seem better situated to take on the task.

In the course of my search for enforcement data, I was even more surprised by the variation in state public records laws and state responses to public records requests (both formal and informal).  Pennsylvania, for example,  has a number of sweeping exemptions that enable broad denials of requests.  The state's Right to Know Law exempts all "[i]nvestigative materials, notes, correspondence and reports" of agencies from public disclosure, for example, and contains twenty-nine other exemptions.  Agency employees in other states seemed to strongly resist my efforts to get enforcement data (one response:  "Crazies call all of the time looking for these records"; another: "We're concerned about what people would do with the preliminary data"), while staff in states like Michigan promptly sent enforcement files and answered questions about staff numbers and total numbers of enforcement actions in various years.

If we really want to know whether environmental laws are working--whether they are controlling the potential effects of drilling and fracturing for oil and gas, for example--we need to know whether states are enforcing them consistently and correctly.  We also need to know how many staff members are available to do this enforcement work.  The current online and paper data do not consistently offer this sort of information in an accessible format.  It's a shame that even when some information is available, states do not, in many cases, make it easily accessible.  Hopefully as online agency enforcement logs become more common, as states notice other states' approaches to collecting and publishing information, and as the public demands more information, this situation will improve. With ongoing state budget struggles, however, even efforts as simple as updating an agency website may end up on back burners.

-Hannah Wiseman

Reprints and the Audiences for Legal Scholarship

A few days ago, Lesley posted a question about article reprints.  That question echoed a recent discussion on the environmental law professors’ listserve, which started with one professor querying why law professors send each other reprints at all.  Similar debates have also played out on other blogs.

In some of these debates, the participants seem to assume or imply that reprints are sent primarily to other law professors.  If that’s so, I think we may be missing an opportunity.  And it begs larger questions about who the appropriate audiences are for our writing, and how we can best reach them.

Obviously writing for other environmental law professors has a lot of value, and that value reaches beyond purely academic realms.  I rely heavily on my colleagues work (and, often, on student work) as I prepare for teaching, particularly when I’m trying to develop a basic understanding of the controversies in an area of environmental law that I don’t know well.  Through my teaching those ideas influence my students, few of whom will ever become academics.  Most of us also maintain networks of contacts in practice, and those people often look to us as conduits for innovative ideas. 

The audiences who gain the most from reading legal scholarship may not be legal academics, however.   They may not even be lawyers.  Judges are one potential audience, of course, though I don’t agree with those who imply that the measure of legal scholarship should be the frequency with which judges who read and cite it.  Legislative aides, administrative agency staff, local government officials, and practicing lawyers all also play major roles in developing and implementing environmental law, and all may be interested in the broader perspective and (somewhat) impartial analysis that good scholarship can provide.  Yet they generally lack the time to go searching for interesting articles to read.  Similarly, environmental academics in non-legal fields deal with environmental law constantly, yet often have only a facile understanding of how it actually works.  For all of these people, environmental law articles can be really useful and helpful.

But here lies the problem, and the potential role of the reprint.  We have wonderful systems for disseminating articles to other law professors.  SmartCILP, SSRN E-Journals,  conferences, listserves, and blogs all provide important supplements to the already-powerful searching and linking capacities of Lexis and Westlaw.  We have OK systems for disseminating our work to non-academic lawyers.  They generally know how to search for writing on a particular topic, but they generally don’t have access to the notification services we academics rely on to find relevant new work.  Hence, perhaps, the reluctance of some judges and lawyers to read academic work; they have access to everything but aren’t sure where to start.  For non-lawyers, the systems are pretty bad.  Imagine trying to find relevant scholarship without access to Lexis or Westlaw (when I was a practitioner attempting to write, I tried; it was awfully hard).   Google Scholar and SSRN are making the situation better, as is the increasingly common practice of posting PDFs on law review websites and faculty profiles, but the process is still archaic and difficult.  For someone in that position, having a reprint appear in the mail could be the difference between reading legal scholarship and not reading at all.  So if we’re sending our reprints only to each other, we’re favoring the audience that probably needs those reprints the least, and missing the audiences that might get the greatest benefit.

I don’t think bombarding non-legal academics and non-academic lawyers is an ideal solution.  The bigger question for academics to ponder may be how we can better notify non-academic lawyers and non-legal academics about relevant legal work.  But sending out a few reprints is at least a step toward bringing legal scholarship to people who might appreciate receiving it and could benefit from reading it.

In the meantime, those of you who have sent me reprints, please continue to do so.  I like getting them.  There’s something irreplaceable, for me at least, about reading something on paper.

-Dave Owen

Reprints and Brochures: A Plea for Conservation

There was recently a dialogue on the environmental law professors listserve about the practice of sending around reprints of one’s articles, and I appreciated the thoughtful post by Lesley McAllister earlier this week reflecting on whether to keep sending them. I wanted to weigh in on this issue as part of a broader concern about environmental mass mailings. As we come into the U.S. News & World Report ranking season, I wanted to make a plea to all law professors and programs, but especially environmental ones, to reduce the amount of paper you print and send and to encourage your colleagues to do the same. 

I am troubled by how many paper brochures and mailings I get from environmental programs.  As much as I have trouble getting through my in-box, I would much prefer that these programs promote sustainability by minimizing the paper that they send and share the exciting things that they and their faculty and students do electronically.  Similarly, I am honored when people think to send me their work in a personal way, but I would much prefer to receive it via email.  These seem like simple individual steps we can take that can have an aggregate impact.  While using our computers also has a footprint, that footprint is likely less than these mass mailings that programs continue to send out as a business as usual practice.

I personally have been shifting to ordering a minimal set of reprints and primarily sharing my work electronically.  I also have asked my faculty to default to double-sided printing (and ask their assistants to do the same) when they need to print.  I am incredibly excited about all of the new developments in our environmental and energy program at the University of Minnesota Law School, including our launching a new concentration in the area this year, and am encouraging us to share this news electronically without sending paper around.  These are all small things, but as we think about all of the exciting possibilities in renewable energy and energy efficiency, it’s critical that we keep conservation in mind.

- Hari Osofsky

Brookings Institution Invites Young Scholars to Participate at a Global Governance Audit

Please see the below announcement from the Brookings Institution:

Brookings Institution Invites Young Scholars to Participate at a Global Governance Audit  

The growing significance of global interdependence is well understood, as is the inherent difficulty of managing global problems through the voluntary and ad hoc cooperation of nation-states. The field of global governance would benefit from a global and inclusive audit that addresses its breakthroughs and failures. The Brookings Institution and the Global Policy journal invite senior university students and young scholars from around the world to ponder the following three questions: 

•   What are notable achievements in global governance and global cooperation, and why? Please be specific.

•   Name three major breakthroughs in global governance arrangements that you would like to see achieved in the next 5-10 years, and explain why. 

•   What are the key obstacles to the development of global governance, global cooperation and solidarity, and explain why?

The essays addressing these three questions should be no longer than 1,200 words and should be submitted by students and scholars currently affiliated with an academic institution or a think tank and between 20-35 years of age. Please send submissions to both [email protected] and [email protected] by October 15, 2011. Accepted essays will be published on Global Policy's website and will be featured in a Brookings working paper.

- Blake Hudson