Monday, January 9, 2012
Outka on the Energy-Land Use Nexus
Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012. The abstract:
This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.
January 9, 2012 in Clean Energy, Environmentalism, Federal Government, Oil & Gas, Scholarship, Sprawl, Sustainability, Transportation | Permalink | Comments (0) | TrackBack (0)
Thursday, December 22, 2011
Levine Powers on State and Local Regulation of Fracking
Yes, more about "fracking", that is, oil and gas extraction through hydraulic fracturing. Erica Levine Powers (SUNY-Albany-Geography and Planning) has published Home Rule Meets State Regulation: Reflections on High-Volume Hydraulic Fracturing for Natural Gas, ABA St. & Loc. L. News (Vol. 35, No. 2, p.1). Here's the opening:
Hydraulic fracturing, or “fracking,” like all mining, is both a local matter impacting community development and environmental quality and a state matter impacting national energy security and regional economic development. Along with the discovery of new sources of natural gas—and methods for its recovery—have come increasing battles over local control and state interests. States have taken diverse positions on fracking, and, building on the experiences of other states, New York is the latest to wrestle with the issue. In the process, New York is defining the roles of local and state government by including an explicit role for local government in environmental review, by public input in the state review process, and through ongoing litigation that will define the rights of New York’s home-rule municipalities to regulate fracking.
December 22, 2011 in Environmental Law, Local Government, Nuisance, Oil & Gas, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)
Friday, December 2, 2011
"Perils in Gas Well Leases"
The New York Times today has an excellent investigative piece on oil and gas leases and how they do - and don't - protect landowners. From the article:
Americans have signed millions of leases allowing companies to drill for oil and natural gas on their land in recent years. But some of these landowners — often in rural areas, and eager for quick payouts — are finding out too late what is, and what is not, in the fine print.
Energy company officials say that standard leases include language that protects landowners. But a review of more than 111,000 leases, addenda and related documents by The New York Times suggests otherwise:
¶ Fewer than half the leases require companies to compensate landowners for water contamination after drilling begins. And only about half the documents have language that lawyers suggest should be included to require payment for damages to livestock or crops.
¶ Most leases grant gas companies broad rights to decide where they can cut down trees, store chemicals, build roads and drill. Companies are also permitted to operate generators and spotlights through the night near homes during drilling.
¶ In the leases, drilling companies rarely describe to landowners the potential environmental and other risks that federal laws require them to disclose in filings to investors.
¶ Most leases are for three or five years, but at least two-thirds of those reviewed by The Times allow extensions without additional approval from landowners. If landowners have second thoughts about drilling on their land or want to negotiate for more money, they may be out of luck.
The leases — obtained through open records requests — are mostly from gas-rich areas in Texas, but also in Maryland, New York, Ohio, Pennsylvania and West Virginia.
I found this personally interesting, as our family holds mineral right on some land in Montana, but with all the natural gas exploration happening in the Eastern U.S. this is a timely story for many.
Jamie Baker Roskie
December 2, 2011 in Oil & Gas | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 23, 2011
Wiseman & Gradijan on Regulation of Shale Gas Development
Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law. The abstract:
Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.
Timely and important.
November 23, 2011 in Environmental Law, Federal Government, Oil & Gas, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)
Thursday, November 3, 2011
NPR on Zoning out Hydrofracking in Upstate NY
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
November 3, 2011 in Clean Energy, Environmental Law, Environmentalism, Industrial Regulation, New York, NIMBY, Nuisance, Oil & Gas, Water, Zoning | Permalink | Comments (0) | TrackBack (0)
Thursday, September 1, 2011
New Eminent Domain Rules take effect in Texas
Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.
September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:
- It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
- It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
- It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
- It gives landowners additional statutory rights to repurchase property not actually used for the "public use."
We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!
September 1, 2011 in Eminent Domain, Local Government, Oil & Gas, Politics, Property Rights, State Government, Supreme Court, Takings, Texas | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 21, 2011
Supreme Court News
It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out. Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term.
Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."
Also, Wal-Mart Stores, Inc. v. Dukes et al. This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field. The Wal-Mart Wars involve a distillation of many of the major land use issues in current events. I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher. Thanks to Troy Covington for the pointer.
In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case. We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!).
June 21, 2011 in Caselaw, Constitutional Law, Environmental Law, Federal Government, Nuisance, Oil & Gas, State Government, Supreme Court | Permalink | Comments (1) | TrackBack (0)
Thursday, April 28, 2011
Mulvaney on the Severance Rehearing and Location vs. Purpose
Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson. I meant to get to it last week, but I wouldn't have done half as good a job. But I also encourage you to do as she suggests and listen to the oral argument yourself.
But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing. Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.
[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson. In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland. But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:
Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable? Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary?
The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.). There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static. At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude. Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose. I would be interested to hear other analogies or perspectives off-blog (email@example.com), or even on-blog if you are so inclined. Thank you for your time.
Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!
April 28, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Oil & Gas, Property Rights, State Government, Texas | Permalink | Comments (0) | TrackBack (0)
Sunday, April 24, 2011
Kornfeld on Natural Resources Damages and BP Deepwater Horizon
Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2. The abstract:
This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.
April 24, 2011 in Beaches, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Oil & Gas, Scholarship, Wetlands | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 6, 2011
Competing Mineral and Wind Rights
In my previous post, I mentioned that renewable energy law often raises property and land use issues. For a recent example of legislative action in this area, see Oklahoma H.B. 1821, which, if enacted, would provide: "Any rights derived from a wind or solar energy agreement shall be subordinate in all respects to [oil and gas] exploration rights except to the extent consent is otherwise given . . . ." The bill also would require a wind or solar developer to obtain prior written consent from "the owner of [oil and gas] exploration rights" in order for the developer to "diminish, abrogate, or interfere with" exploration rights, and the owners of oil and gas exploration rights would be allowed to grant or withhold consent "for any reason or no reason." Jeff Wilson, the Oklahoma Independent Petroleum Association (OIPA) Vice President of Governmental Affairs, notes that "the wind turbines and transmission lines popping up across western Oklahoma can make it tough to bring in oil and gas rigs," and he supports the bill. A separate pending bill, S.B. 124, would also block wind developers from using eminent domain authority to acquire land. The wind industry is understandably concerned about these developments, arguing that H.B. 1821 would halt most wind development in the state.
Professor Ernest Smith and Becky Diffen have a useful discussion of broader legal principles likely to emerge in mineral-wind surface disputes in their "Winds of Change" article in the Texas Journal of Oil, Gas, and Energy Law. As Smith and Diffen point out, developers can avoid many of the conflicts anticipated by Oklahoma's bill through private contracting. Oil or gas and wind developers can enter into an accommodation agreement, for example, wherein they agree to share roads for rigs and construction equipment and select specific locations for well and tower placement. Regardless of the remedy chosen, mineral-wind disputes will likely expand in importance as renewables continue to grow, and these raise interesting questions for the classroom. Will first-in-time principles continue to govern? Who must "accommodate" whom under traditional common law doctrines? If a wind and mineral lease are acquired simultaneously, should one right have priority over another, or should the parties be required to negotiate from equal positions? Many of the answers to these questions will likely depend on states' energy priorities. In states with strong natural gas economies, like Oklahoma, gas development may maintain the upper hand despite the abundant winds that blow through the western portion of the state. As the OIPA President has argued, "In Oklahoma law, the mineral estate is the dominant estate." If supporters of H.B. 1821 succeed, the law likely will reflect this position.
April 6, 2011 in Oil & Gas, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Saturday, March 5, 2011
Before Mountain Top Removal . . . Historic Designation Removal
NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men. Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site. After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within.
March 5, 2011 in Clean Energy, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Historic Preservation, History, Industrial Regulation, Oil & Gas, State Government | Permalink | Comments (0) | TrackBack (0)
Saturday, February 26, 2011
Weekend Break: Local Hero (1983)
As I get ready for Property's land-use finale this semester, I will be making room to show a scene from one of my favorite movies of all time, Bill Forsyth's Local Hero. A mid-level oil executive (Peter Riegert) is dispatched by the company CEO (Burt Lancaster) to buy up an entire Scottish coastal village to make way for a vast North Sea petrochemical facility. Almost to a person, the villagers welcome the opportunity to pull up stakes and sell.
The scene that I will show involves the negotiations over relocating the elderly beachcomber, who is skeptical about releasing his legal claim in exchange for any of the most expensive tropical shorelines in the world. Another scene offers a brief exchange relating to sustainable economic development. Both go quickly to the heart of the difference between market and subjective valuations of land and the role the latter plays in sustaining community. If nothing else, my prep will be an excuse to watch one of the funniest movies about modern village life around.
February 26, 2011 in Beaches, Community Economic Development, Development, Economic Development, Eminent Domain, Environmentalism, Oil & Gas, Property, Property Theory, Sustainability, Takings | Permalink | Comments (1) | TrackBack (0)
Monday, February 7, 2011
We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!
- Jessica Owley
Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy
March 28-29, 2011 at University at Buffalo School of Law
Buffalo, New York
On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.
Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.
We welcome submissions on any related topic, including the following:
- Hydrofracking and Nuisance Law
- Impacts on Tribal Lands
- Administrative law and the EPA Rulemakings
- Environmental Review Processes
- Application of federal environmental laws, including the Clean Water Act and Clean Air Act
- Energy issues, in including the Energy Policy Act and DOE policy
- Endocrine Disruption and Human Health Impacts
Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to firstname.lastname@example.org.
For more information, contact Jessica Owley [email@example.com or 716-645-8182] or Kim Diana Connolly [firstname.lastname@example.org or 716-645-2092]
February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack (0)
Friday, January 28, 2011
Wiseman on Expanding Regional Renewable Governance
Hannah J. Wiseman (Tulsa) has posted Expanding Regional Renewable Governance, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011). The abstract:
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a renewable parcel is identified, a new piece of property is superimposed upon existing boundaries and jurisdictional lines. The entities within these boundaries all possess rights to exclude, and this creates a tragedy with strong anticommons and regulatory commons elements, which hinder renewable development. This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address the governance challenges in renewable development, and it analyzes elements of existing regional institutions to suggest the ideal structure of this agency. Once formed, the regional framework should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
January 28, 2011 in Clean Energy, Environmentalism, Local Government, Oil & Gas, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)
Saturday, January 22, 2011
Six Distributional Effects of Environmental Policy
Don Fullerton (Illinois-Finance) has posted Six Distributional Effects of Environmental Policy on SSRN. Here's the abstract:
While prior literature has identified various effects of environmental policy, this note uses the example of a proposed carbon permit system to illustrate and discuss six different types of distributional effects: (1) higher prices of carbon-intensive products, (2) changes in relative returns to factors like labor, capital, and resources, (3) allocation of scarcity rents from a restricted number of permits, (4) distribution of the benefits from improvements in environmental quality, (5) temporary effects during the transition, and (6) capitalization of all those effects into prices of land, corporate stock, or house values. The note also discusses whether all six effects could be regressive, that is, whether carbon policy could place disproportionate burden on the poor.
January 22, 2011 in Affordable Housing, Architecture, Clean Energy, Climate, Environmental Law, Environmentalism, Green Building, Housing, Oil & Gas, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Monday, January 17, 2011
Deal on Ellickson, Whaling, and the Judicial Invention of Property Norms
Robert Deal (Marshall--History) has posted The Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited. The abstract:
Robert C. Ellickson has argued that whalemen developed norms to settle arguments over contested whales. These norms, Ellickson explained, were largely adopted by courts as the property law of whaling. Ellickson’s point is that whaling norms “did not mimic law; they created law.” Ellickson is certainly correct that the close-knit community of nineteenth century American whalemen managed to settle disputes in ways which maximized group welfare. What Ellickson has failed to recognize is that that the means by which whalemen resolved disputes without violence or frequent involvement of courts was built not upon widely accepted norms, but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honorable behavior arising out of the particular situation and parties involved.
In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were to a large degree responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.
A close examination of trial transcripts and depositions from two of the five whaling disputes from the Sea of Okhotsk that were litigated in the nineteenth century reveals the vagaries of whaling norms and the problems in using judicial opinions to recover such practices. In Heppingstone v. Mammen, it is impossible to draw from the testimony of crew members and expert witnesses anything resembling a norm upon which battles over contested whales could be resolved at sea or in court. The court’s misunderstanding in Swift v. Gifford of whaling practices was quickly accepted by legal scholars as definitive evidence that the whaling fleet in the North Pacific had adopted a single standard for determining when an interest in a fleeing whale ripened into ownership.
Whalemen in the Sea of Okhotsk proved adept at resolving controversies on a common sense, ad hoc basis without universal norms. The close knit nature of their community, the intensely communal nature of their competition, and the economic pressure to settle disputes allowed Okhotsk whalemen to resolve contests without the aid of well settled norms.
I'm teaching Ghen v. Rich on Wednesday as part of the classic "wild animal" trilogy of cases (with Pierson v. Post and Keeble) on the norms and laws regarding how humans reduce fugitive resources to property by establishing first possession. So I'm having fun reading this well-written and historically rich article that challenges some received wisdom!
January 17, 2011 in Caselaw, History, Oil & Gas, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
Monday, December 6, 2010
Outka on The Renewable Energy Footprint
Uma Outka (Florida State) has posted The Renewable Energy Footprint, forthcoming in the Stanford Environmental Law Journal. The abstract:
Renewable energy is widely considered essential to climate change mitigation, and policies favoring renewable energy are finding their way into law at all levels of government. With the shift toward renewable energy comes the potential for staggering land impacts – many millions of acres may be consumed to meet demand for electricity and fuel over the next 20 years. To conservationists’ dismay, the more renewable energy we use, the more land we need. This article is concerned with two primary questions: What are the implications of renewable energy development for land use and land use law, and how might the land use context inform emerging energy policy?
Siting power plants and transmission lines is notoriously difficult, and renewable energy has proved no exception. As investment in the sector has grown, so has dissatisfaction with existing siting frameworks. This perceived inadequacy has led to a flurry of siting-related law and policymaking tailored to large-scale renewable energy infrastructure. So-called NIMBYs opposing renewable projects are derided for hindering the green economy. Almost reflexively, we hear, it’s a “trade-off”: shrink the carbon footprint, grow the land use footprint.
This article rejects the trade-off reflex as counterproductive for both causes – it presents an often false choice that obscures legitimate land use concerns and slows renewable development. Instead, our focus should be on deliberately crafting law that avoids needless compromise wherever we can. This perspective demands a far greater integration of energy policy and land use law. To date and across the board, regulatory apparatus for siting is almost exclusively fixated on site-specific land use. Although this remains important, it reflects a worrisome myopia given the land impacts at stake. Accordingly, I argue, cumulative land impacts should be a central consideration in the development and implementation of energy policy.
December 6, 2010 in Clean Energy, Development, Environmental Law, Environmentalism, NIMBY, Oil & Gas, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)
Friday, November 12, 2010
Perry on Deepwater Horizon and the Limits of Civil Liability
Ronen Perry (Haifa) has posted The Deepwater Horizon Oil Spill and the Limits of Civil Liability, forthcoming in the Washington Law Review. The abstract:
The article, which follows up on my recently published work, uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act.
This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case.
Part I systematically discusses pre-OPA law. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime.
Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps, or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. The article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution.
November 12, 2010 in Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 9, 2010
Pierce on Minimizing the Impact of Oil and Gas Production
David E. Pierce (Washburn) has posted Minimizing the Environmental Impact of Oil and Gas Development by Maximizing Production Conservation, from North Dakota Law Review, Vol. 85, p. 759 (2009). The abstract:
One oil and gas well results in less environmental impact and surface disruption than two wells. The number of wells required to efficiently develop an oil and gas reservoir can be significantly reduced, while increasing the ultimate recovery of the oil and gas resource, if the reservoir can be developed without regard for the rule of capture. Current oil and gas "conservation" regulation is built around the rule of capture, which creates the legal necessity to be associated with an oil and gas well in order to secure rights in the oil and gas. By shifting the focus of rights in oil and gas reservoirs away from capture rights and toward correlative rights, state oil and gas conservation commissions can better manage development of the oil and gas resource, allowing all interested parties to maximize recovery of their oil and gas resources while minimizing the impact on surface and other natural resources.
November 9, 2010 in Environmental Law, Oil & Gas, Property, Property Rights, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)
Summary of Errors Leading to Deepwater Blowout
We've done a fair amount of posting about the Deepwater Horizon disaster. (See for example here and here.) Marc Poirer is planning to teach a week-long course at Seton Hall in January on the blowout, and he gave the Environmental Law professors listserv a heads' up to this interesting article. It summarizes all the errors that lead to a collosal disaster.
More than 100 hours of testimony before a federal investigative panel, two dozen congressional hearings and several internal company reports have brought the genesis of the spill into sharp focus. The record shows there was no single fatal mistake or cut corner. Rather, five key human errors and a colossal mechanical failure combined to form a recipe for unprecedented disaster.
It's a great summary of everything that went wrong. Thanks, Marc, and good luck with your course!
Jamie Baker Roskie
November 9, 2010 in Clean Energy, Industrial Regulation, Oil & Gas, Teaching | Permalink | Comments (0) | TrackBack (0)