Wednesday, February 15, 2017

Now, about those other dams...

Orovill_dam_spillway_2017-02-11_16730609_10154430795287449_8360716524217440974_nFor several recent days, the eyes of the nation were on the Oroville Dam in Northern California.  A rainstorm atop heavy snowpack threatened to overfill Lake Oroville, and the outflows began to erode the dam’s primary spillway.  Dam managers switched to a backup spillway, which had never been used, but it, too, began to fail within hours.  That led to the evacuation of 200,000 people, and to the California Department of Water Resource’s Facebook page becoming far more popular than the department has ever wanted it to be.  Thankfully, the erosion in the primary spillway has stabilized, and the threat seems to have abated.

(Image from Wikimedia Commons; William Croyle (California DWR), photographer)

But we should not relax too much, because there are tens of thousands of dams across the nation, and many of them would seem like better disaster candidates than Oroville.  Unlike most dams, Oroville Dam gets a lot of attention; it holds back the key water storage reservoir for California’s State Water Project, which provides water to millions of people in the Los Angeles and San Diego metropolitan areas and to smaller but still substantial numbers of people in the San Francisco Bay area.  For urban water users in California, no other dam is more important—and it also is an important source of agricultural water supplies.  Its continued integrity is worth billions of dollars to water users across the much of the state.  It also is important to the Sacramento metropolitan area, much of which sits on low ground and behind aging levees about seventy-five miles downstream.

Oroville Dam’s operations are also subject to higher-than-normal levels of regulatory oversight.  Because the dam generates hydropower, the state of California needs an operating license from the Federal Energy Regulatory Commission, and FERC licenses periodically come up for renewal.  FERC’s licensing process provides an opportunity for reconsidering—among many other issues—the safety impacts of continued dam operation, and it also provides participation opportunities for many other government agencies, NGOs, and individual members of the public.  Indeed, it was during the most recent relicensing process, in 2005, that environmental groups warned of the scenario that unfolded over the past week.

Those warnings went unheeded, but at least there was a public forum for them to be offered.  That is more than can be said for most of the United States’ dams.  The vast majority of those dams do not generate hydropower and are not subject to FERC regulation.  Regulatory oversight, to the extent it exists, instead comes from state law.  In a recent study, The Nature Conservancy’s Colin Apse and I described what we learned about those state laws (I’ve taken out the footnotes but linked to several source documents):

[I]n most states, a dam, once built, is grandfathered from the requirements of environmental laws.  Many of those dams were constructed before significant environmental laws existed or, at least, before those laws were acknowledged and enforced. The environmental laws of many states therefore have never really applied to most of those states’ dams. Indeed, in many states, the only way environmental laws would be triggered is if a dam owner proposes to do something different with a dam — like, for example, add hydropower capacity or take the dam out.

On paper, state regulation of dam safety is more robust. Most states have safety standards and laws requiring periodic inspection of dams, and safety reviews ought to present opportunities to reexamine the operations or even existence of dams. But on closer examination, those schemes also often appear — in the words of one leading expert — “pitiful.” Maine, for example, has robust requirements for dam inspections but has never adequately funded the inspection program. Texas recently passed legislation exempting many dams from its inspection program, and Texas law, at least as currently interpreted, also limits the public’s ability to even access information about dam hazards. Many other states face similar circumstances. Dams do age and fail, but because of these oversight gaps, smaller dam owners in many states are all but legally invisible so long as nothing goes drastically wrong. Indeed, there are thousands of state-regulated dams whose owners aren’t even known.

To make matters worse, most dams lack the kind of constituency that the Oroville Dam has.  Many dams produce little economic value, and unless people downstream realize the safety risks the dams pose, no one is likely to demand, let alone offer money for, their continued maintenance and upkeep.  For the non-negligible percentage of the United States’ dams with unknown ownership, maintenance is particularly unlikely.  State-regulated dams are generally small, while the Oroville Dam is the nation’s tallest, so the risks are of different orders of magnitude.  But that does not mean they are non-existent.  Even small dams can cause big problems.

So what should we do about this situation?  At the Oroville Dam, the solution will likely involving pouring a lot more concrete.  Sometimes that will be the appropriate thing to do.  Indeed, as Colin and I argued, there are places where the most sensible thing to do with a dam will be to fix it up and add some turbines.  But for thousands of dams, a more sensible alternative is removal.  If a dam provides only marginal economic benefits—or no benefit at all—to its owners, causes environmental problems, and is a safety risk, it ought to come out.  Similarly, states ought to take a much closer look at their dam safety programs.  If a closely-watched dam like Oroville can turn into a menace, it’s concerning to think about all the aging infrastructure that no one is watching.

People often think of dam removal primarily as a method of environmental restoration, and dam removals are indeed an effective way to restore damaged environments.  But taking out dams, as well as reinvesting in the ones that remain, also can be a good way to keep people safe.

- Dave Owen

February 15, 2017 | Permalink | Comments (0)

Wednesday, February 8, 2017

"2-for-1" Marketing Ploy is Bad Policy

By: Lesley McAllister

I’ve been thinking about the ridiculous Executive Order, signed last week, calling for two regulations to be “identified for elimination” for every new one proposed.  Trump's so-called "2-for-1" EO.  Amidst all the other horrible news (e.g., the DeVos and Sessions confirmation hearings), it hasn’t gotten as much publicity and criticism as it deserves. 

Federal regulations pass though many steps before they are promulgated. One of the most time-consuming and sometimes contentious is a cost-benefit analysis.  It is time-consuming because it is complicated – imagine trying to put a dollar value on all the costs and all the benefits of a new traffic safety or air pollution rule. Now that such analyses have been required for so many years, we have experts in the agencies and in the White House (specifically in the WH Office of Management and Budget’s Office of Regulatory Analysis, OIRA) who do all this work.  But it is often contentious because it’s not straightforward how to monetize the value of an avoided traffic accident or a asthma-free childhood.  And, importantly, for a regulation to make it into the Code of Federal Regulations, generally its benefits must be deemed to outweigh its costs.

So, when you revoke that regulation, you are losing all those benefits, not to mention the time and energy (of agency staff, of advocates, and others) that went into putting the regulation in place. And I don’t think there are a lot of costly, dumb regulations just waiting for elimination.  Obama and prior presidents were also sensitive to the issue of regulatory costs, and an Obama issued an Executive Order in 2011 that required agencies to review existing regulations to determine if they need modification or repeal.  My guess is that there’s not much deadwood left. 

The bottom line here is that Trump’s EO doesn’t just mimic a marketing ploy, it IS a marketing ploy. It sells the idea that there’s too much regulation and that regulation doesn’t provide benefits. In fact, the reality is the reverse.  Regulations protect our environment, economy, health and safety, and general welfare.  Trump wants to take away the benefits we get from protective regulation, and prevent new regulations that would further benefit and protect us -- from climate change, financial downturns, and many other pressing problems on the horizon. It's a marketing ploy. Don't buy it!

February 8, 2017 | Permalink | Comments (1)

Monday, February 6, 2017

Lesley McAllister, David Takacs, and some Moments to Celebrate

For the most part, the past few weeks have not been uplifting.  But I’ve been to a few inspiring events, both involving my fellow professors.

The first was a festschrift for Lesley McAllister, a law professor at UC Davis and one of the key players in the revival, several years ago, of this blog.  Lesley is battling cancer, and her prognosis is not good.  Those are dark circumstances, but the event was a celebration of life.  Hearing about everything Lesley has done for her students, her colleagues, and for our understanding of environmental law—and hearing about her hope to keep doing that work in the time she has left—was a reminder of how much it can mean to live.

The second was a ceremony for my colleague David Takacs, who just received UC Hastings’ most prestigious award for his teaching.  The award was well earned.  David pours everything he has into teaching, and the results—including a standing-room-only crowd of students and alums at the event ceremony—are palpable.  If you’re interested, you can read more about the event here.

Amid all the dark headlines, I’m grateful to David and to Lesley for reminding us how much our daily work can mean.

- Dave Owen

February 6, 2017 | Permalink | Comments (2)

Wednesday, February 1, 2017

"Environmental Policy 101" for Trump Nominee Pruitt

By:  Lesley McAllister

I was very glad to see the news today that Democratic senators boycotted the confirmation hearing of Scott Pruitt, the OK Attorney General nominated to lead the EPA.  When I watched part of his January 18th hearing online, I found myself wondering why we bother. Republicans have the votes to confirm anyone they want, and evasive answers are often easy to give, so what’s the use?

Now it occurs to me that, even if they don't ultimately block the confirmation, the hearings serve the purpose of jolting the nominee out of her/his bubble and making her/him realize that there are a lot of voices that s/he will need to listen to that s/he probably hasn’t been paying any attention to.  In other words, the purpose is to educate. A guy like Pruitt has only dealt with environmental issues in an ideological way – one of the pack of Republican attorney generals that fought selected Obama initiatives on the grounds of federalism or simple anti-regulatory zeal.  He has never had to really think about why we need environmental laws and how to implement them effectively.

So that hearing might be considered "Environmental Policy 101."  Happily, it was seven hours long, a sign (I think) of how much Pruitt needs to learn.  But, it seems that he didn't pass the test.   On Monday, Democratic senators on the Senate Committee and Public Works requested postponement of today's hearing due to Pruitt's lack of substantive responses to some questions, particularly regarding various conflicts of interest arising from his past record of suits against EPA regulations and his ties to the fossil fuel industry.  Democrats are understandably concerned that he will fail to learn the most important lesson of all, that his new job would be to support EPA's mission of environmental protection, not to undermine and weaken the agency as he has in the past. 

So, "Environmental Policy 101" continues, hopefully until Democratic senators are satisfied.  But Republican senators will probably find a way to give Pruitt a pass, as they did today for Trump's nominees to lead Treasury and Health and Human Services: a surprise meeting to suspend committee rules and vote without the Democrats.   Well, I hope Pruitt at least got a glimpse of the vast terrain of environmental policy that he is likely to be in charge of soon.  Soon, it seems, the task of educating him will fall to all of us!

February 1, 2017 | Permalink | Comments (0)