Environmental Law Prof Blog

Dams, Environmental Trading Systems, and the Future of Hydropower

Several months ago, Secretary of Energy Ernest Moniz made waves with a bold prediction: the United States could double its hydropower capacity by 2030.  And that doubling, the Department of Energy argues, could be sustainable.  If that prediction even comes close to coming true—and there are many reasons why it might not—a Maine project and some Maine-based research may provide some important guidance.

Of course, this all may seem rather implausible.  Dams, according to many environmentalists, are “evil, placed and solid,” as John McPhee wrote in Encounters with the Archdruid.  The notion of sustainable hydropower therefore may sound, to many people, like an ironic joke.  And partly because of its environmental impacts, hydropower has been in decline.  Legal attention has reflected that decline.  Go to an energy law conference these days, and you’ll probably hear a lot about wind, solar, and fracking and little or nothing about dams.  You might walk away thinking that hydropower is yesterday’s energy.

But there is some basis for Moniz’s enthusiasm about hydropower.  In the United States, hydropower still generates more electricity than all other sources of renewable energy—combined.  And across the nation, there are tens of thousands of existing dams and other waterworks that don’t generate hydropower.  Putting turbines in those places would be a great way to generate relatively clean energy without creating significant environmental impacts.  Sometimes, in places where downstream reaches have low dissolved oxygen levels, installing a new turbine can even bring environmental benefits.  And if we compensated for the environmental impacts of new dams (and minimized those impacts by placing dams carefully) by taking out old, decrepit dams on river mainstems, new dam construction could actually have net environmental and energy benefits.

For over a year, Colin Apse, a scientist with The Nature Conservancy, and I have been thinking about legal structures that would facilitate that win-win future.  Our conceptual model is the Penobscot River Restoration Project, an innovative and ambitious project that allowed continued operation of some dams in return for removals of other dams (and payment of a large sum of money).  The net result of the project should be massive environmental improvements and a slight gain in hydropower capacity.  Our study asks how that circumstance could be replicated, and, more broadly, how environmental trading system concepts could play a role in that replication.  We don’t suggest that it will be easy.  But we identify a list of legal reforms that could facilitate the same sort of win-win outcomes elsewhere, and, more broadly, could help achieve a better balance between hydropower development and environmental protection.

- Dave Owen

(The photograph (from nature.org) shows the Howland Dam).

D.C. Circuit Rejects Challenge to FERC Order Approving Cost Pooling Agreement for Trans Alaska Pipeline

On February 20, the D.C. Circuit (Griffith, Kavanaugh, Wilkins) issued a decision in Tesoro Alaska Co. v. FERC.  Tesoro Alaska and Anadarko Petroleum ship oil on the Trans Alaska Pipeline System between points within Alaska.  In 2013, FERC approved a cost pooling agreement among the owners of the pipeline.  Tesoro Alaska and Anadarko Petroleum filed petitions for review challenging FERC's approval of the agreement.  The D.C. Circuit denied the petitions, holding (1) that the Interstate Commerce Act gives FERC authority over intrastate oil pipeline traffic, at least where, as here, regulating the intrastate traffic is a necessary incident to regulating interstate traffic; and (2) that FERC did not act arbitrarily or capriciously and had sufficient evidence for its findings.

—Todd Aagaard

Big Oil v. Little City

For years now, national attention has been focused on the Keystone XL Pipeline saga.  But it isn’t the nation’s only pipeline fight.  Here in Maine, what could be some very interesting pipeline litigation has just begun.

The case involves a pipeline that transports oil from South Portland, Maine to Montreal.  Since World War II, oil in the pipeline has flowed only north.  But with Albertan oil production escalating dramatically, Canada’s need for oil imports has declined, and the pipeline company would like to reverse the flow.  That would mean turning the port of Portland, Maine into a major export site for tar sands oil.

But there’s a hitch.  The southern terminus of the pipeline lies at the mouth of Portland Harbor, adjacent to South Portland’s most important park and across the water from parks and the Old Port district in Portland.  Casco Bay, into which the harbor enters, is a beloved scenic and recreational resource for residents and a major destination for tourists.  Still, seventy years ago, this was exactly the kind of place where cities would put oil pipes and tanks; providing industries with good water access often trumped everything else.  But values have changed, and South Portland has started envisioning a different future for this part of its waterfront.  When the pipeline proposal emerged, the city (through a long process described in more detail here) responded by enacting an ordinance restricting the construction of new “bulk oil” export facilities on its eastern waterfront.

Is that ordinance valid?  According to a federal court complaint just filed by Portland Pipe Line Company, the answer is an emphatic no.  The complaint foreshadows a whole host of arguments, most of them grounded in the idea that the ordinance is just regulating the contents and flow direction of an international pipeline, and such regulation is the exclusive province of the federal government.  As the complaint succinctly puts it, “[o]ne city in Maine cannot impede federal decision-making on international relations, trade, and resource transportation and replace it with its own foreign policy.”  And as Maine goes, so goes the nation and, perhaps, the world.  The complaint warns of drastic consequences if the ordinance stands: it “sets a precedent for inconsistent local harbor regulation that could cripple import and export activities nationally and invite reciprocal commerce curtailment from other nations.”  Even the founding fathers would be horrified.  South Portland, according to the complaint, has “contravene[d] fundamental principles upon which our Republic was founded,” and the complaint offers Federalist Papers citations to back that claim up.

South Portland, of course, will have a different story.  The ordinance clearly was kick-started by larger-scale events, and it may well have ramifications that extend beyond South Portland’s boundaries.  But local land use ordinances are often inspired by larger events, and they often have consequences extending across city lines.  That alone, the city will argue, does not make them constitutionally suspect.  Indeed, there are dozens, if not hundreds, of cities whose land use ordinances would probably preclude construction of new oil export facilities.  Are those ordinances also unconstitutional?   If they are, then another venerable constitutional principle—respect for local land use planning authority—may well be in danger.

Beyond that basic conflict, the case will raise many more intriguing sub-issues.  By my rough count, perhaps a dozen law school courses seem implicated by the complaint, and once the litigation proceeds, that number could easily get higher.  And these questions aren’t just academic.  The tension between energy development and transport and local governance has become one of the central legal issues of our age, with very real economic and environmental consequences. 

For me, there’s also a personal dimension to the fight.  I live in South Portland, about a mile from the oil terminal.  And while others deserve far more credit (or blame) than me, I did play a minor part in getting the ordinance passed, and, more generally, in advocating for South Portland to begin thinking about a future in which it no longer is the East Coast’s second largest oil port.  I won’t be here to see that future; in a few months, I move back to the San Francisco Bay Area.  But the neighborhood in dispute will always be the place where my children were born, and a place that I love.  I hope it also will be a place that gets to decide its own future.

- Dave Owen

D.C. Circuit Upholds Park Service Plan to Manage Deer Population in Rock Creek Park

On January 20, the D.C. Circuit (Garland, Pillard, Sentelle) issued a decision in Grunewald v. Jarvis.  The National Park Service adopted a plan in 2012 for managing the deer population in Rock Creek National Park in Washington, D.C., by lethal and non-lethal means.  Animal rights advocates sued to prevent the agency from killing deer.  The district court granted summary judgment for the Park Service, and the D.C. Circuit affirmed.  First, the court held that the deer management plan was consistent with the Rock Creek Park Enabling Act, which the court interpreted to allow killing some animals within the park to prevent serious harms to other natural resources.   Second, the court held that the Park Service had adequately supported its findings that lethal action to manage the deer population was warranted to protect park resources. Third, the court held that the Park Service’s Environmental Impact Statement complied with the National Environmental Policy Act.  The Park Service appropriately set the objective of reducing the deer population in Rock Creek Park; reasonably decided to analyze an exotic plant plan in a separate, rather than single consolidated, Environmental Impact Statement; and adequately considered the effects of its plan on humans who might witness the killing of deer.

Although animal rights advocates and environmentalists are often aligned, this case is one of several in which efforts by federal agencies to manage animal populations that are damaging public lands lead to conflicts between animal rights and environmental interests.  See, e.g., In Defense of Animals v. U.S. Dep't of Interior, 751 F.3d 1054 (9th Cir. 2014) (wild horses and burros); Feldman v. Bomar, 518 F.3d 637, 640 (9th Cir. 2008) (feral pigs).

—Todd Aagaard

Sixth Circuit Holds that Clean Water Act Permit Shield Allows Discharges from Mine

On January 27, the Sixth Circuit (Merritt, Gibbons (dissenting), McKeague) issued a decision in Sierra Club v. ICG Hazard, LLC.  ICG Hazard, LLC, operates the Thunder Ridge surface coal mine in Kentucky under a Coal General Permit issued by the Kentucky Division of Water pursuant to the federal Clean Water Act.  ICG’s permit did not contain a discharge limit for selenium.  Kentucky does, however, have a state water quality standard for selenium.  Some of ICG’s discharges from the Thunder Ridge mine caused exceedances of the selenium water quality standard.  Sierra Club filed a Clean Water Act citizen suit based on the selenium discharges.  The district court granted summary judgment for ICG, and the court of appeals affirmed.  The court upheld EPA’s interpretation of the Clean Water Act’s permit-shield provision, which states that “compliance with a permit . . . shall be deemed compliance” with the statute, 33 U.S.C.§ 1342(k), as allowing discharges of pollutants not specifically listed in a general permit.  The court of appeals saw no distinction to be made on this question as between individual permits and general permits.  Because the Clean Water Act by its interpretation authorized ICG’s selenium discharges, the court held that the Surface Mining Control and Reclamation Act did not apply.

Judge Merritt dissented.  He would have held that ICG, by causing water quality violations, violated the Clean Water Act.

—Todd Aagaard