Environmental Law Prof Blog

In Case You Missed It: The Week of June 3-9

* A new study by Chinese, British, and U.S. researchers indicates that Chinese carbon emissions may be as much as 20% higher than official estimates, a 1.4 billion ton gap in 2010.

* The Canadian Opposition party introduced hundreds of amendments to Bill C-38, the Conservative government's omnibus budget bill, which makes significant changes--protested by environmental groups--to Canadian environmental law.

* The U.S. Bureau of Land Management and U.S. Forest Service announced that they will delay the sale of natural gas leases on 43,000 acres of the Talladega National Forest to allow for additional engagement of key stakeholders after many raised concerns over hydrofracturing and endangered species.

* The U.S. Department of Energy gave awards to nine universities to support their research on innovation and development of clean goal technologies.

* A Florida administrative law judge rejected a challenge by five environmental groups to the state's water pollution rules (the suit claimed that the rules inadequately controlled nutrients like nitrogen and phosphorus).

* The Michigan State Senate passed changes to the state's sand dune protection laws that would make it easier to build in those areas.

Legislating Climate Science

Much to my chagrin, a number of people have forwarded me information about a proposal in my new home state:  a bill that would require the following of sea-level rise estimates:

"These rates shall only be determined using historical data, and these data shall be limited to the time period following the year 1900. Rates of sea-level rise may be extrapolated linearly to estimate future rates of rise but shall not include scenarios of accelerated rates of sea-level rise."

In the past, I've taken the position that unless there's some special interest at stake (like suspect classifications or fundamental rights), courts ought to be reluctant to interfere when legislatures make policy decisions based on faulty science.  On the other hand, a legislature getting science plain wrong might signal no rational basis.  Is there room for that analysis here?

At the very least, this is a reminder that courts often provide a check that's too little, too late.

-Emily Meazell

Annual Law & Society Meeting in Honolulu

The 2012 Annual Meeting of the Law & Society Association (LSA) starts today in Honolulu, Hawaii. I’ve been to most annual meetings in the past 15 years, but this year I won’t make it because I am halfway across the world in Spain.

LSA Annual Meetings are very vibrant events, with an incredible array of panels featuring not just established scholars but also lots of young ones. The great majority of people who attend present a paper or otherwise moderate or speak on a panel. LSA embraces a diversity of empirical scholarship; as the website states , “Members bring training in law, sociology, political science, psychology, anthropology, economics, and history as well as in other related areas to the study of sociolegal phenomena.” This year’s program includes 2,200 people and 500 panels. And although the meeting is large, it’s not hard to find what you are interested in. Panels and presentations are categorized by keywords (of which there are about 50) like “Environment and Landscape;” “Regulation and Governance,” “Access to Justice,” “Economy and Society,” “Non-State Legal Actors,” and “Risk.”

Below are the names and presentation titles of some of our US environmental law prof colleagues who will be there (apologies if I missed you!) The meeting has become very international – I think I remember hearing that more than half of the participants last year came from outside the US. If you are interesting in going in 2013, the meeting will be in Boston from May 30 - June 2. The call for participation will likely be issued this October with submissions due in early December (last year’s call is here). Hope to see you there next year!

- Lesley McAllister

Cinnamon Carlarne (Ohio State University), When One Treaty Is Not Enough: The Future of Global Climate Governance

David M. Driesen (Syracuse University), Financial and Climate Regulation: Macro or Micro?

Daniel Farber (University of California, Berkeley), Events Beyond Imagination? Integrating Catastrophic Risks into Decision Making

Alice Kaswan (University of San Francisco), Climate Change, the Clean Air Act, and Industrial Pollution: Traditional versus Market-Based Regulation

Albert Lin (University of California, Davis), Does Geoengineering Present a Moral Hazard?

Justin Pidot (University of Denver), Insuring Coastal Retreat

Katherine A Trisolini (Loyola Law School), Acclimatizing to a Warmer Planet

Amy J. Wildermuth (University of Utah), Heightened Review in Environmental Cases: Fact or Fiction?

Sandra Zellmer (University of Nebraska), Wilderness Imperatives: A Comparative Analysis

This is Your Face . . . This is Your Face on UV Radiation

From the New England Journal of Medicine: "A 69-year-old man presented with a 25-year history of gradual, asymptomatic thickening and wrinkling of the skin on the left side of his face . . . Findings were consistent with the Favre–Racouchot syndrome of photodamaged skin, known as dermatoheliosis. The patient reported that he had driven a delivery truck for 28 years. Ultraviolet A (UVA) rays transmit through window glass, penetrating the epidermis and upper layers of dermis . . . UVA has also been shown to induce substantial DNA mutations and direct toxicity, leading to the formation of skin cancer."

- Blake Hudson

Emerging Issues in the Arctic, Part IV: The Technological Challenge of Offshore Drilling

Iceberg off the Newfoundland Coast

Two weeks ago I traveled to St. John’s, Newfoundland to attend an industry conference on offshore drilling in the Arctic. (In the interests of full disclosure and by way of explanation: I won a full registration fee waiver in a lottery, and the prohibitively expensive event became merely expensive.) The marine engineers, deep sea pipe-layers, winterization technology inventors, community relations liaisons, and oil and gas men from Houston, Calgary, and Scandinavia kept asking me what I was doing there. (There were exactly two other lawyers, and no other law professors present.) I kept explaining: I know what the political and legal postures are, but I want to learn how players inside the industry are approaching the Arctic frontier.

One thing I quickly learned was that the extraordinary challenges confronting drilling in the extreme conditions of Arctic waters represent different things to different people. For environmentalists, these challenges represent a threat – to existing ecosystems, wildlife, subsistence lifestyles, and stories about what the Arctic is and means. For people in the oil and gas industry, and to the contractors who service them, the challenges represent economic opportunity. There is more to it than that, of course, but the dichotomy between these perspectives is both striking and revealing: Challenge = Threat vs. Challenge = Opportunity.

It is easy to see why the groups find it hard to find middle ground.

I also came to better understand the nature and extent of the technological challenges confronting offshore drilling in the Arctic result. The challenges are significant, amounting to what Dr. Ove Tobias Gudmestad, a Danish professor of marine technology with a long history of consulting for StatOil, called an “extreme design situation.” One must deal with, among other things: (1) remote locations that are a long way from an operational base, emergency transport, a place to evacuate to, or a settlement large enough to accommodate the thousands of people required to contend with a large oil spill; (2) icebergs drifting by and threatening to collide with a rig; (3) developing, operating and maintaining year-round drilling systems in various ice conditions, from single-season ice that can be about 6 feet thick at its maximum to the multi-year ice that averages about 9 feet in thickness; and (4) contending with half a year or more of darkness and bone-warping cold. Ice tanks such as those housed at the National Research Centre’s Institute for Ocean Technology in St. John’s (pictured to the right) and at Aker Arctic Technology in Finland, allow for scale-model testing, but as more than one engineer admitted to me, scale-model testing is particularly iffy when it comes to thick ice. 

The technological challenges are only underscored by the current knowledge gaps. In terms of environmental assessment, there is a real scarcity of biological information on the newly accessible areas of the Arctic, meaning there is, or is going to be, a lack of a baseline from which to measure impacts. In terms of responding to oil spills, there is sparse information on how and how well manual containment and recovery will occur, on the success-rates of in-situ burning, and on how or whether dispersants will work under the ice. Perhaps most importantly, however, is what Dr. Gudmestad, riffing on Donald Rumsfeld, referred to as “the unknown unknown.” Dr. Gudmestad pointed out that, “In the past, the Arctic was mysteries.” It still is. As Dr. Gudmestad put it: “Twenty years ago we were almost exactly where we are today in terms of drilling in the Arctic.”

Depending on your narrative frame, that fact will be either terribly troubling or enormously inspiring.

In a related note: In my last post, I wrote about the 9th Circuit oral argument in Native Village of Point Hope vs. Salazar. Last week, the 9th Circuit issued an opinion upholding BOEM’s approval of Shell’s exploratory drilling plan in the Beaufort and Chukchi Seas. Lawsuits remain challenging the air permits issued by EPA, but Shell is one step closer to drilling this summer.

- Michael Burger

In Case You Missed It: The Week of May 27 - June 2

* An EPRI report estimated that new pollution rules for coal plants will cost between $175 and 275 billion between now and 2035

* Prof. Jonathan Adler posted a fascinating argument for why political conservatives should care about climate change

* Numerous faith groups supported a resolution from Rep. Jim Moran (D-Va.) for congressional action on climate change

* The NRC voted 3-1 to relicense Entergy's Pilgrim Nuclear Power Station in Massachusetts

* The Obama administration asked the Supreme Court not to grant certiorari on a number of environmental cases

* Wyoming's governor has asked the Department of the Interior to delist the grizzly bear under the Endangered Species Act

* DOE gave Leafully the first "Apps for Energy" grand prize; it helps utility customers understand their usage data more easily

* Meanwhile, many smarthphones will go on sale this summer in Japan allowing for radiation detection

Carbon Capture and Sequestration, Revisited

I previously posted about an empirical study that my colleagues and I at the University of Utah law school's Stegner Center for Land, Resources, and the Environment and the Institute for Clean and Secure Energy conducted on carbon capture and sequestration ("CCS").  The point of the study was to try to assess, from the perspective of the CCS industry, what the biggest barriers are to CCS commercialization and, accordingly, what CCS law and policy should look like.

With both coal plants and CCS in the news recently, I thought it might be worth revisiting a few interesting points from that study I did not highlight before.  Some of the study findings were most important because they added empirical heft to what many commentators already suggested.  For instance, many have suggested that some of the biggest problems with CCS are its cost and potential liability issues, and our study confirmed that those are in fact leading barriers to CCS commercialization.

On the other hand, the study revealed some facts that run counter to conventional CCS wisdom.  One of these was that the CCS industry is generally quite confident in its technology.  That stands in contrast to many reports, which suggest that big demonstration projects must be built before CCS can be deployed at a broad scale.  Of course, AEP has now abandoned -- at least for the time being-- its demonstration project, but the fact that this project was operational at all underscores, at least to a degree, our finding that CCS technology can function on the big stage.

Another interesting finding was that the CCS industry is very interested in a comprehensive, rather than piecemeal, regulatory regime.  This jives with industry's general craving for certainty but not necessarily with political calls in the media for a hands-off approach to regulation of industries with environmental impacts.  Moreover, the survey findings were rather clear that industry wants not just a comprehensive regulatory regime but one that uses a cooperative federalism model with federal regulatory floors but state implementation to adjust to local conditions.  In any case, in a world where many lambast federal regulation at all, it is very clear that the CCS community thinks there is a federal role of some kind to play in governing carbon capture and sequestration.

 

- Lincoln Davies