Wednesday, March 13, 2013
By Guest Author, Bessie Schwarz, Yale School of Forestry and Environmental Studies '14
On Thursday, March 7, the Yale Center for Environmental Law and Policy invited Tom Hunt from the Colorado Energy Office (CEO) to present a webinar on “The Future of Oil and Gas Production in Colorado” as part of the Center’s ongoing Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development. CEO, a department within the Governor’s office, oversees energy investments and facilitates the growth of the state’s energy market and industry.
In his presentation, Mr. Hunt discussed the history of oil and gas production in Colorado and the unique political and environmental considerations required for regulating recent growth in the state’s natural gas production, driven primarily by shale gas. Natural gas is a fast moving issue for Colorado, as the state looks to balance the large shale gas reserves now accessible through horizontal drilling and hydraulic fracturing with conventional fossil fuel sources and renewable energy, such as wind. As this energy landscape shifts, CEO faces difficult challenges from private citizens, advocates, local governments, and energy companies. Mr. Hunt touched on these many complexities in his presentation.
You can watch Mr. Hunt’s full presentation below, in which he discusses the role of shale gas in Colorado’s energy portfolio and how the state has approached regulation of the natural gas industry. You can also download his presentation slides separately here.
The Future of Oil and Gas Production in Colorado 3-7-13 1.00 PM from YCELP on Vimeo.
Colorado’s Changing Oil and Gas Landscape
Oil and natural gas exploration is relatively “ancient history” in Colorado. First discovered and tapped in the late 19th century, oil and gas production has followed a boom-bust cycle, but the economies of several of the state’s counties, as well as the broader state economy to a certain degree, depend on these energy resources. Traditionally, oil and gas production and drilling has been concentrated in only a few counties. Mr. Hunt highlighted two of these, Weld and Garfield counties, during his presentation.
But while Colorado has been an oil and gas producing state for many decades, the dynamics of natural gas production in the state are rapidly changing. Since 1999, production of both fuels in Colorado has been on the rise with oil growing 125% and gas 83%. In 2009, a hydraulic fracturing operation also first unlocked a large previously inaccessible reserve of natural gas. In the subsequent years, a hydraulic fracturing boom has increased both the intensity of gas production in Colorado and expanded this industry into new areas of the state. These new areas include some of Colorado’s most populated towns, including parts of the Denver metropolitan area. As oil and gas production has entered new communities, it has sparked debates and spurred staunch opposition from some citizens and towns dotting the state’s new gas regions.
Regulating Natural Gas Development
The changing field of oil and gas in Colorado has forced new considerations of benefits and concerns, regulatory options, and legal issues. Mr. Hunt explained that in its energy-planning role, his office must weigh the interests of all of the state’s 5 million residents and the long-term protection of the state’s economy and environment. A major factor in this debate is the fact that the oil and gas industry currently employs 40,000 workers in Colorado and is a major economic driver. For example, the state exports (sells) three quarters of the gas that it produces.
Responding to concerns about air quality, health, noise, water scarcity, threats to the state’s world-renowned open spaces, and other issues, Colorado has striven to become a national leader in the regulation of natural gas. For example, Mr. Hunt noted that almost half of the policy recommendations contained in the International Energy Agency (IEA)’s 2012 report “Golden Rules for a Golden Age of Gas” are taken from Colorado state rules. You can find the details of the IEA’s report here. Among the policies that Mr. Hunt highlighted are new rules for impact mitigation, safety buffers around residential areas, and transparent communication for operations. These rules require drilling buffers of 500 feet around residential areas and disclosure of hydraulic fracturing fluids, although with exemptions for companies wishing to protect fluid components as “trade secrets.” Future steps will include a new interstate partnership coordinating natural gas vehicle programs and investments as well as several air emissions studies.
Colorado’s current hydraulic fracturing regulations are largely the result of two hotly debated rulemakings in 2011 and 2012, which involved companies, stakeholder groups, and legislators.
Ongoing Questions for Natural Gas in Colorado
In the complicated future of natural gas production in Colorado, renewable energy and questions about local versus state jurisdiction over gas regulation are likely to take center stage.
Wind and solar energy are among Colorado’s rich natural resources, and while these clean energies have traditionally represented a small fraction of the state’s energy portfolio, wind in particular is a promising source of current and future revenue and energy. Colorado is ranked 10th in the country for wind production and is home to the North American offices of Vestas Wind Systems, the world’s largest wind company. To encourage growth in this industry, Colorado has some of the country’s strongest renewable energy policies including a Renewable Energy Portfolio, which diversifies the state’s energy and helps build toward a clean energy future. CEO is responsible for balancing renewable energy with natural gas, coal, and other energy resources.
As new communities in Colorado react to new gas production within their boundaries, local legal fights have begun to dominate the debate in Colorado as they have in many other states that are looking to regulate and develop their shale gas resources. Some of Colorado’s most politically conservative towns have enacted moratoriums to gas, including two bans in the last few months, but it remains unclear if towns and cities have the legal authority to adopt such protections under Colorado law. In recent years, some states including Pennsylvania have explicitly prohibited such actions by local authorities. In Colorado, the City of Longmont and more recently the City of Fort Collins have adopted hydraulic fracturing bans, and these measures are now battlegrounds in the state debate. Longmont is currently being sued by the Governor to overturn its moratorium.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will pick up next with a presentation by reporters Scott Detrow and Susan Phillips on “The Community Impacts of Marcellus Shale Gas Development,” which will draw on their award-winning coverage of hydraulic fracturing in Pennsylvania as part of National Public Radio (NPR)’s StateImpact Pennsylvania series. Mr. Detrow and Ms. Phillips’s webinar will take place on Friday, March 29, from 12-1:30pm EDT.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
Tuesday, February 19, 2013
By Bruce Ho
On Tuesday, February 12, the Yale Center for Environmental Law and Policy invited Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) to present a webinar on “Natural Gas and U.S. Electric Power Futures” as part of our ongoing Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development.
In his presentation, Mr. Logan discussed research that he recently completed through the Joint Institute for Strategic Energy Analysis (JISEA), a partnership between NREL and five universities, on “Natural Gas and the Transformation of the U.S. Energy Sector: Electricity.” The JISEA report helps answer some key policy questions about shale gas, including: (1) the lifecycle greenhouse gas (GHG) emissions from shale gas as compared to conventional natural gas and other fossil fuels; (2) the need for new regulations and best management practices; and (3) the role that shale gas could play in the U.S. power sector – including a transition to a clean energy future – over the next several decades.
You can watch Mr. Logan’s full presentation below, in which he discusses the potential role of shale gas in a variety of U.S. power futures (i.e., Chapter 4 of the JISEA report). You can also download his presentation slides here and the full JISEA report here.
The Role of Natural Gas in U.S. Electric Power Futures from YCELP on Vimeo.
While Mr. Logan covered a variety of potential shale gas futures, I will focus the rest of this post on the potential role of shale gas in meeting a clean energy future, which is a topic that I also addressed in a previous entry.
The Role of Shale Gas in a Clean Energy Future
If we look at clean energy within the context of climate pollution, the question of whether shale gas can play a role in a clean energy future has two parts: (1) What are the lifecycle GHG emissions associated with shale gas? (2) What effect will shale gas have on adoption of even cleaner, renewable energy, such as wind and solar? EDF’s Dr. Ramon Alvarez discussed the first issue, which is largely a question of methane leakage, with our webinar participants last fall. Because you can review his webinar and a summary of it here, I won’t re-hash methane leakage issues again in this post, but I will note that Chapter 1 of the JISEA report includes interesting new research on methane leakage, and is well worth the read.
In his presentation last Tuesday, Mr. Logan looked at the second question and presented some fascinating model results that can help answer whether shale gas is likely to coexist with, complement, or crowd out the development of renewable energy. To address this issue, JISEA modeled a power sector future subject to a Clean Energy Standard (CES), which is a policy that reduces power sector GHG emissions by requiring that a certain percentage of total power production comes from clean energy and then ratcheting up this percentage over time. A CES is similar to a renewable portfolio standard (RPS), but unlike an RPS, a CES also counts nuclear energy and natural gas toward its clean energy target.
The CES modeled by JISEA would require that 80% of all energy come from clean sources by 2035 and 95% from clean sources by 2050. Because natural gas is not carbon-free, a natural gas power plant would receive less credit toward meeting the CES targets than a wind or solar farm. The crediting system that JISEA modeled would work as follows:
Renewable energy and nuclear energy would receive full credit (i.e., 100%) toward meeting the CES targets.
Natural gas combined-cycle plants would receive 50% credit.
In the future, if carbon capture and sequestration (CCS) technology is developed, then natural gas with CCS installed would receive 95% credit while coal with CCS would receive 90% credit.
All other power plants (e.g., coal without CCS) would receive no credit (i.e., 0%).
Here’s an example: in a hypothetical year, if total power output is 100,000 MWh, of which 40,000 MWh is from renewable energy, 10,000 MWh is from nuclear, 30,000 MWh is from natural gas combined cycle, and 20,000 MWh is from coal, then the percentage of clean energy would be 65%: (40,000 * 1 + 10,000 * 1 + 30,000 * 0.5 + 20,000 * 0) / 100,000 * 100% = 65%. On the other hand, eliminating all of the coal and replacing half of it with renewable energy and half with natural gas combined cycle would raise the percentage of clean energy to 80% – i.e., the goal for 2035. The numbers here are examples only, but show that natural gas could play a role in a CES future.
In fact, JISEA’s model, which is more sophisticated than my hypothetical and, among other things, includes modeling and optimization of energy system costs, suggests that natural gas could play a key role in meeting the CES through about the year 2030. At that point, generation from natural gas would start to decline, though not disappear. As the CES targets rise, gas’ 50% credit would be too low to contribute meaningfully to the targets, and it would be necessary to replace some gas plants with even cleaner renewable or nuclear energy. (JISEA’s model suggests that renewable energy would fill in most of the gap here because it would be more economical than more expensive nuclear energy.) However, the model also suggests that CCS could become a technologically and economically viable option in later years, out past 2040, which would allow natural gas to make a resurgence later in combination with CCS, which would be credited at 95%.
Two additional modeling results are worth noting here. First, JISEA’s results suggest that meeting the hypothetical CES, including the highest clean energy targets in the later years, would increase electricity prices by only about 8-10% (to say nothing of the benefits that society would gain from cleaner energy, most notably the chance to avoid the worst potential impacts of climate change). Thus, a clean energy transition is not only environmentally necessary but also economically achievable. Second, in a separate model, JISEA looked at the potential impact of additional environmental and social protections (modeled as an increase in the price of natural gas) to reduce or eliminate many of shale gas production’s negative impacts, and found that these protections would not appreciably reduce future shale gas use. In other words, more environmentally and socially responsible shale gas production would not require an end to the shale gas boom. These results support efforts to develop shale gas in a more responsible manner, such as those discussed by Southwestern Energy’s Mark Boling in our webinar last month.
The Role of Shale Gas Today
JISEA’s modeling provides support for the idea that shale gas, if developed responsibly, could be a “bridge” to a clean energy future, but does so within the context of a yet-to-be-adopted CES. What about in the context of today’s power sector in which carbon remains a largely unregulated pollutant?
On this point, Mr. Logan provided both a pessimistic and an optimistic vision. The pessimistic vision is that without carbon policies, if natural gas prices remain low and renewable energy does not become cheaper, cheap natural gas could well stall the future development of renewable energy. Mr. Logan noted, for example, that high oil prices in the 1970s and early 1980s led to significant renewable energy growth, but when oil prices later crashed, renewable energy slowed substantially. The optimistic vision is that while natural gas prices have been low for the past few years, renewable energy – particularly wind, but also solar – continues to grow rapidly, suggesting that advancements in renewable energy technologies are simultaneously reducing the costs of renewables and allowing these clean energy sources to compete in the marketplace.
Whether current trends will continue, however, is hard to know, and while JISEA’s models suggest that shale gas could possibly play a role in a clean energy future, getting there efficiently and in time to avoid the worst impacts of climate change will almost certainly require policies that account for the full climate impacts of our energy choices.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will next consider shale gas issues from a state perspective with a presentation by Tom Hunt from the State of Colorado’s Energy Office on “The Future of Oil and Gas Production in Colorado.” Mr. Hunt’s webinar, which will take place on Thursday, March 7, from 1-2pm EST, will examine the history, economic impacts, policy responses, and future of oil and natural gas production in Colorado, and will focus on how Colorado is seeking to access the economic and energy security benefits of oil and gas production while honoring the environmental protection and diverse property uses that the state’s citizens value.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
Friday, February 15, 2013
By Guest Author, Ainsley Lloyd, Research Associate, Yale Center for Environmental Law & Policy
The Environmental Performance Index (EPI) featured prominently in the recent debate between Peter Foster and David Boyd in Financial Post (The nature debate part 1 and The nature debate part 2, January 25, 2013).
Over the past ten years the EPI has used measureable environmental information to rank countries based on their environmental performance. The EPI team from Yale and Columbia universities pores over data on the environment, comparing it with wealth, governance, and trade, among many other aspects of well being. First and foremost, we have learned that these relationships are complex, and that a few lines of text often lose the larger message in the data. The debate between Messrs. Foster and Boyd is no exception, and in this case, losing the message of the EPI means losing perspective on the nature of Canada’s environment and economy.
Wealth and the environment
Both Foster and Boyd reference theories on the relationship between wealth and the environment, with Foster arguing the two variables are correlated and Boyd questioning the strength of that relationship. The EPI provides some real-world insight.
EPI data show that although there is a relationship, a nation’s wealth only marginally explains its final EPI ranking. This means that there are other important factors influencing environmental performance. Put differently, economic development matters, but other factors are more important. Although we have not identified every variable, we are confident that environmental performance is not an accident of history and factors such as pragmatic and enforceable environmental safeguards are key.
Foster notes that Canada scores poorly in the overall EPI and blames our devotion “to official climate alarmism,” arguing that we weigh the Climate Change and Energy category of the EPI too heavily. While Canada does rank 102 out of 132 countries in the Climate Change and Energy analysis, Brunei Darussalam, Czech Republic, Luxembourg, Netherlands, Poland, and Taiwan all manage a better overall EPI rank with a lower Climate score. Furthermore, the Climate Change and Energy category actually receives less weight in the 2012 EPI than it did in 2010—a decrease from 25 percent of the overall EPI score to just 17.5 percent.
In addition, we have anticipated much of Foster’s climate-related concern by choosing CO2 emissions measures that account for his critiques— specifically, differences in wealth and in country size. The EPI indicators that address these concerns are CO2 per GDP (to account for differences in wealth between nations) and CO2 per capita (to account for differences in population size between nations). In the future, perhaps we can cut countries like Canada slack on account of higher latitudes and greater needs for heating—though energy needs for cooling in lower latitudes might balance the equation.
Foster is also concerned that our Environmental Health objective is not weighted as heavily in the final EPI score as its counterpart objective of Ecosystem Vitality. His concern is valid. Throughout the development of each edition of the EPI we consult with science and policy experts to fine-tune our methodology, and a departure from equal weights within the EPI framework is a signal that we have picked up on something important. It turns out that equal weights do not necessarily mean equal influence (something we discuss briefly in the blog post “the Science and Art of Quantification” and in our upcoming manual “How to Build Green Indices: Learning from the Experience of the Environmental Performance Index”).
For the 2012 EPI, a 50-50 weighting for Environmental Health and Ecosystem Vitality meant that the overall EPI scores were too heavily influenced by performance in the Environmental Health objective alone because of its wider distribution. Countries that perform high in the Environmental Health objective were likely to perform better in the overall EPI, regardless of their scores in Ecosystem Vitality. Both Health and Ecosystems are important and we adjusted the EPI weightings to correct for this imbalance.
Finally, Mr. Foster brushes off the significance of the Environmental Performance Index because of its “murky metrics.” The response here does not require any complicated analysis. Our entire process, from data to methods to the final ranking, is entirely available online and is free and open to the public. Nothing could be less murky. Any journalist, researcher, or policymaker who wishes to dive in is more than welcome, and we are here to help.
On that note, to Messrs. Foster and Boyd: we would like to invite you both to serve on our expert panel for the 2014 EPI. You’ll find that it’s a dynamic group of scientists and practitioners, ready for debate, eager to prepare the best set of tools possible for policymakers.
Monday, February 11, 2013
By Guest Author, Omar Malik, Yale School of Forestry and Environmental Studies '13, Research Assistant, Yale Center for Environmental Law and Policy
An article in a recent issue of The Economist suggests that putting effort into domestic climate change legislation is more important than pushing international climate agreements right now. The piece describes the results of a new study that assesses whether the climate change policies of 33 countries have improved, gotten worse, or remained the same as of the end of 2012. The encouraging results indicate that domestic policy action is happening even in the absence of a mandated treaty structure.
This ought to bring hope to environmentalists who advocate for a more decentralized approach to climate change policies. It should also appeal to those who bemoan the apparent political impasses of the international U.N. climate negotiations.
The new study—the third in a series by GLOBE international—was extolled by Christiana Figueres, the Executive Secretary of the UNFCCC, the U.N. body that coordinates global climate change agreements. She attended the release party for the report in London this January and issued an official statement, in which she said, “[D]omestic legislation on climate is the absolutely critical, essential linchpin between action at the national level and international agreements.” At the same time, she remarked that the ultimate goal of the study should be that it paves the way for the next U.N. climate treaty that’s supposed to be agreed upon by 2015, to take effect by 2020.
The U.S. National Climate Assessment report came out just as recently from the U.S. government. Also in its third iteration, the Assessment is open for public review until April 2013. Perhaps in a complementary way to the GLOBE study, the US Assessment focuses more on the science and evidence of climate change for one particular country and broadly touches upon the policy situation as well. Similarly, the conclusion of the report states that more U.S. policy action is necessary, but that concerted global actions would be the best way to go forward.
Both reports seem to suggest, then, that domestic policies are necessary, but not sufficient, to achieving the ultimate goals of climate action.
This is a familiar problem in the global climate policy debate: should governance move from the top down or the bottom up to reach desired outcomes? And, should success rely on individualistic actions or, rather, support from movements in concert? These tensions are the fuel for geopolitics and have led to both progress and paradox.
The need for harmonized policies in the face of trying times reminds me of a passage in The Federalist. John Jay, writing to newspapers in 1787 to argue for the adoption of the new Constitution, argued that it’s beneficial for a central government, when concerned about national defense, to “move on uniform principles of policy.” The case certainly has been made for treating climate change as an issue of national security; many politicians have already argued that climate change poses that kind of threat to the United States (both John Kerry and the US Navy have issued public statements). In this case, perhaps its management should be approached in terms of coordinated policies with the kind of logic articulated in The Federalist:
Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.
--John Jay (Federalist No. 4, available online http://avalon.law.yale.edu/18th_century/fed04.asp)
As John Jay tells us, these debates are not new. The new climate reports show that the world’s countries do behave in the manner similar to Voltaire’s Candide, tending their own gardens; but, at the same, the reports remind countries to keep in mind that the end goal is to use those piecemeal gardens to make the wider world greener.
The Economist. “Climate-change laws: Beginning at home.” 19 January 2013.
BBC News. “Climate change measures: Report praises politicians.” 13 January 2013. http://www.bbc.co.uk/news/science-environment-20983931
The 3rd Climate Legislation Study from the Global Legislators Organisation (GLOBE International).
Available here: http://www.globeinternational.org/images/climate-study/3rd_GLOBE_Report.pdf
Homepage of GLOBE International: http://www.globeinternational.org/index.php/legislation-policy/studies/climate
UNFCCC statement from Christiana Figueres. 13 January 2013. http://unfccc.int/files/press/statements/application/pdf/201314011_globe_international.pdf
The U.S. National Climate Assessment, draft for public review. 2012.
Tuesday, January 29, 2013
By Bruce Ho
On Wednesday, January 23, Mark Boling, President of V+ Development Solutions, a division of Southwestern Energy Company, kicked off the spring line-up of our 2012-2013 Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development with a presentation on “Balancing Environmental, Social and Economic Impacts of Shale Gas Development Activities.”
In his presentation, Mr. Boling provided both a defense for continued shale gas development and an acknowledgment that the gas industry needs to do a better job, on the whole, of acknowledging and addressing legitimate environmental concerns. Toward this end, he discussed Southwestern’s efforts to: (1) study the rate of methane leakage from shale gas wells in collaboration with the Environmental Defense Fund (EDF) and others (their final report is due out soon); (2) work with EDF to develop and promote a model regulatory framework for states to ensure proper well integrity; (3) develop improved well cementing technology with the University of Houston and CSI Technologies; (4) with help from The Nature Conservancy, train employees and contractors to reduce erosion and sedimentation impacts from project sites; and (5) develop new tracer technology with Rice University to help detect hydraulic fracturing fluids if they migrate into groundwater.
You can watch Mr. Boling’s full presentation below, in which he further discusses Southwestern’s views on the shale gas debate and the company’s vision of environmental responsibility and regulation.
Balancing Environmental, Social and Economic Impacts of Shale Gas Development Activities from YCELP on Vimeo.
In listening to Mr. Boling’s presentation and his responses during the subsequent Q&A, three things struck me as particularly important issues for regulatory discussions:
(1) “A Level Playing Field” – Mr. Boling noted that Southwestern strongly supports adoption of the model regulatory framework that it has developed with EDF. But he also stressed the need for a level playing field, suggesting that even companies interested in doing “the right thing” may hesitate to implement best environmental practices if doing so makes them less competitive. Companies may not always seek the lowest denominator – Mr. Boling noted that many implement best practices that go beyond regulatory minimums – but without effective regulatory safeguards, economic pressures will make it difficult if not impossible to address environmental concerns fully, even with good actors.
(2) “Straight Talk” About Regulations – In discussing what he sees as a need to “refocus the debate,” Mr. Boling recommended that his industry spend less time trying to minimize public concerns and more time communicating about the real risks involved in shale gas development and what the industry is doing to mitigate these risks. For example, during the Q&A, Mr. Boling noted that he has split with those in his industry who argue that “green completions,” which help reduce or eliminate air pollutant emissions from new shale gas wells, are too costly. New regulations adopted by the U.S. Environmental Protection Agency (EPA) last year will require green completions of all new hydraulically fractured wells by the year 2015, though Southwestern has begun this process early by participating in EPA’s Natural Gas STAR Program. Mr. Boling noted that a few years ago, green completions cost his company $20,000 more per well than simply venting pollutants to the air, but these costs have since fallen significantly, and now green completions are often profitable investments because they capture natural gas that can be sold rather than wasted. Notably, these economic benefits are purely private and do not take into account the additional public benefits that arise from reduced air and climate pollution.
Companies such as Southwestern deserve credit for leading environmentally through the Natural Gas STAR Program and other such initiatives. Southwestern’s experience also reinforces the observation that the costs of regulatory compliance are often much less than originally anticipated as new technologies and solutions develop or become cheaper to implement over time (see, e.g., here, here, and here).
(3) Politics and Science – Mr. Boling lamented what he sees as too much politics in shale gas regulation and not enough regulation based on sound science and risk assessments. The goal of science-based (or scientifically informed) regulation is a good one, and it is true that some parties on both sides of the shale gas debate have stretched the science too far in support of their agendas. As more research is published – including studies involving Southwestern – these data will hopefully contribute to an improved public understanding of shale gas’ environmental risks and impacts as well as its potential benefits.
But it is also true that science cannot, on its own, determine the best regulatory approach when faced with uncertainty or questions of socially acceptable levels of risk. Decisions about whether to move forward with resource development or to wait for science (and policy) to catch up to practice are inherently political, and thus politics will continue to play a role in determining how shale gas fits into the future energy mix.
In the context of climate change, for example, it is indisputable, scientifically, that burning fossil fuels, including shale gas, contributes to a warming planet. Yet there is a debate as to whether shale gas will exacerbate this warming in the long run or instead help reduce the total warming by helping transition us away from coal and, eventually, to carbon-free energy. Ultimately, the outcome of political decisions about energy investments and environmental risks will determine whether the former or the latter is true. Sound science, including climate science, must be a key component of these decisions, but resource outcomes and policies are rarely pure questions of scientific fact. Politics will play a role.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will continue on Tuesday, February 12, from 2-3pm EST with a presentation by Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) on “The Role of Natural Gas in U.S. Electric Power Futures.” Mr. Logan will present research from a report he recently co-authored through the Joint Institute for Strategic Energy Analysis, an initiative between NREL, the University of Colorado-Boulder, the Colorado School of Mines, Colorado State, M.I.T., and Stanford.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
Tuesday, January 22, 2013
By Guest Author, Nathaniel Loewentheil, Yale Law School '13
The following is a guest post by Yale Law Student Nathaniel Loewentheil. Nathaniel recently authored a report for the Institution for Social and Policy Studies, which this post summarizes. You can find the full report here.
Two new reports out from NASA and the National Oceanic and Atmospheric Administration add to the ponderous weight of evidence suggesting that our climate is changing more rapidly than we had anticipated – and with greater consequences.
This makes for reconciling two difficult truths: first, that climate change is already affecting all of our lives, and second, that our national political institutions are doing nothing to address it. They’re not now, and they won’t be for the next few years. The environmental movement is almost completely sidelined by a recalcitrant and increasingly conservative Republican Party and, we must admit, a public concerned more with daily economic necessities than long-term ecological challenges. When that movement will again be able to capture public attention is difficult to say.
In the meantime, the movement is biding its time and plotting strategy for the future. Before it looks forward, however, it must necessarily look back at the most recent climate campaign: the failed push for a cap-and-trade bill in 2009 and 2010.
In a new report out this week from Yale’s Institution for Social and Policy Studies, I take a look at that climate campaign using historical trends in political parties, voting records, natural resource distribution and a variety of other indicators.
The report has two key findings. First, and unsurprisingly, there were a variety of forces that together blocked cap-and-trade legislation, from energy interests and political geography to polarization and the recession.
But, I believe, defeat was not inevitable.
To see this, all we have to do is look at the Affordable Care Act of 2010. The fact that a major healthcare reform bill got through Congress suggests that the climate movement might have succeeded, recession and the Tea Party notwithstanding.
Comparing the two campaigns, a key difference emerges. The healthcare campaign succeeded by combining a sophisticated insider strategy with large-scale organizing. The climate campaign, in sharp contrast, had an insider strategy only. Through the US Climate Action Partnership, organizations like Environmental Defense Fund and Natural Resource Defense Council built an impressive coalition of NGOs and corporations and laid out the policy framework ultimately embedded in the Waxman-Markey bill. But the campaign didn’t build a grassroots network or attempt to win over public opinion. In this, it erred dramatically.
I also looked back at the history of environmental policymaking, from the Wilderness Act of 1964 up through the Superfund Act of the late 1980s. In case after case, the same lesson was clear: major environmental legislation can only succeed when an organized movement makes demands and the public voices its approval. Lacking both street power and endorsement by the polls, the climate campaign was doomed to a slow death in the Senate.
The bright side is that a careful analysis of the failure of the climate campaign provides a clear lesson for the future. The movement needs to begin investing in local and state organizations that can build a strong, enduring network of activists ready to spring into action the next time a realistic climate bill is on the table. Organizing, of course, is built around action – and now is a good moment to be running campaigns at the municipal and state level for energy efficiency measures and tax breaks for green technology.
But that’s not enough. The movement also needs to begin shifting public opinion. And to that end, we need a new generation of journalists who, like Rachel Carson, can capture the hearts of Americans, not just their minds.
Read the full report here.
Wednesday, January 16, 2013
By Guest Author, Angel Hsu and William Miao, Yale Center for Environmental Law & Policy
Beijing’s air quality once again is making international headlines for off-the-chart measurements of air pollution. Images of Beijing show China’s capital city completely shrouded in gloomy shades of grey. According to Jan. 12 readings of the city’s official real-time air quality monitoring platform, air pollution levels exceeded the upper limit of 500 on the Air Quality Index (click here to read an explanation of China’s newly adopted AQI) in many of Beijing’s districts, meaning that air pollution was beyond “hazardous” levels. The US Embassy in Beijing, which has been independently monitoring air pollution since the 2008 Olympics, independently measured and reported AQI values topping 755 .
Infographic created by Monte Kawahara
The most significant contributing pollutant by far, as reported by both the Chinese and US measuring capacities, is fine particulate matter, or PM 2.5. Readings that topped 500 in November 2010 prompted a US Embassy official to tweet that the air was “crazy bad,” although this outtake was quickly recinded.
PM 2.5 – Small Particle, Big Threat
PM 2.5 represents fine particles suspended in the air with a diameter of less than 2.5 microns (about one thirtieth of the width of human hair). Particles of this size are capable of passing through the respiratory track and remaining in the human lungs, causing a range of short-term and chronic conditions such as asthma, lung cancer, and cardiovascular disease.
So how PM 2.5 being measured and reflected in air quality indices, communicated by both the U.S. Embassy and Chinese government? Last March the Chinese Ministry of Environmental Protection (MEP) released new national air quality standards and an index, the AQI, for communicating air quality that was more consistent with U.S. standards. The main difference between the Chinese and U.S. AQIs for PM 2.5 is the pollutant concentration thresholds used. While the U.S has adopted a PM 2.5 concentration threshold close to the World Health Organization (WHO)’s recommended levels of 10 μg/m3, China has opted for thresholds similar to the interim guidelines the WHO has set for developing countries.[JG1]
In Table 1, above, we see US and China AQI breakpoints for PM10 and PM 2.5. Note that the descriptions in column 2 are based on the Chinese AQI standards, not US standards.
Because the official AQI measurements are capped at 500, the real extent of PM 2.5 concentrations citizens faced this past weekend in Beijing are understated. In fact, the PM 2.5 readings of all regions across the city in the evening of Jan. 12 were above 700 μg/m3, peaking at 993 μg/m3) When the US Embassy reported AQI values above 500 some asked whether their monitors were broken.
When the US Embassy air monitor started reporting values above 500, some thought these were measurement errors, as the upper-end of the AQI only reaches 500. How were AQI values beyond 500 determined? Vance Wagner, a long-time Beijing air quality analyst, wrote a post explaining the linear estimation of the AQI beyond 500, demonstrating that the US monitor uses the relationship for concentration levels at 400 μg/m3 to 500 μg/m3.
In figure 2, above, we see the relationship between PM 2.5 concentrations and AQI. The red line is based on the China AQI, while the blue is interpolated values used by the US Embassy monitor AQI. Note that the official PM 2.5 concentration to IAQI conversion isn’t linear, an online calculator is available to perform the conversion.
Therefore, the equivalent-AQI of 755 reported by the US Embassy’s monitor, would have corresponded to a PM 2.5 concentration of 668 μg/m3. As a comparison, UN WHO recommends a safe level of PM 2.5 of 15 μg/m3, with an interim goal of 75 μg/m3.
These highly hazardous levels of PM 2.5 have prompted Chinese authorities to urge all residents to remain indoors and to order schools to cancel outdoor activities for children.
What’s Causing the Scale-tipping Smog?
Beijing’s air quality is the result of a complex interaction of many climactic, geographic, and anthropogenic factors. Here are some of the explanations set forth to explain why air quality is so hazardous:
· Winter weather conditions and “haze”: According the official Chinese news channel, China Daily, the main reason for such record-setting pollution is lingering fog and haze. The article states, “Experts and residents in the worst-hit areas such as Shijiazhuang are becoming increasingly worried about the air pollution brought by frequent winter haze.” In the same article, Ma Xuekuan from the National Meteorological Center attributed the formation of fog and haze to the wet air, little wind, and stable atmosphere conditions common in winter. Hazy, humid and stagnant air are perfect for trapping pollutants such as fine particles, which lead to the smog. While there is logic to this explanation, as Beijing lacks precipitation during the winter months and a few days without wind prevents pollutants from being blown away, the weather and natural causes can’t be entirely to blame for off-the-charts pollution. Even long-term residents are shocked by the recent smog levels.
· Heating from coal-fired power plants. Around 80 percent of China’s power comes from coal-fired power plants, although Beijing does have plans to eliminate the capitol’s coal plants by 2020.
· Increasing car ownership. Beijing now has 5 million vehicles, and the number is increasing. Authorities are now owning upto these staggering statistics and are beginning to think of more aggressive measures to curb emissiosn from vehicles.
· Industrial activities in neighboring provinces. Beijing is bordered by Shandong and Hebei provinces, which are some of the most industrially intensive provinces in China. In 2011, according to official Chinese Statistics, Shandong had the third-highest industrial output GDP, while Hebei came in sixth.
· Agricultural biomass burning. While it is unlikely that the severe pollution in Beijing this month is due to agricultural burning because January is not a harvest month, extreme air pollution last May in Wuhan was due to multiple fires of burning biomass, which puts a significant amount of dust, soot, and particulate matter in the atmosphere.
What can be done?
While China’s recent move to release PM 2.5 data for 74 major cities in China, with more plans to release data for all 113 key environmental protection cities by the end of this year, the beyond 500 AQI readings have called into question whether China should revise its AQI to account for pollution levels beyond the index. The meaningfulness of an index that reads “beyond Index” in determining the severity of air pollution is questionable. Our observations of the MEP’s official PM 2.5 data in previous months show that air pollution is not as severe on a daily basis for all of China. However, considerations for increasing the scale beyond 500 would be helpful for situations like we’re seeing now.
The good news is that the Chinese government is being more responsive and transparent than they have in the past. The government has been more open to official media reports covering the severity of air pollution and to citizens publicly airing grievances in media outlets. However, the more challenging task will be how the government can take this momentum and translate it quickly into enforcable policies addressing the root causes of the pollution, instead of shifting blame to uncontrollable, natural factors like wind or climate.
Wednesday, January 02, 2013
By Guest Author, Lia Nicholson, Yale F&ES '14
Doha, the capital of Qatar, is a glamorous construction – built entirely over the last 50 years – with an extravagant skyline where desert dunes meet the Persian Gulf. Attending the world’s biggest climate meeting there, the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), was a surreal experience. The glamor of the convention center, the deference with which our hosts treated the 9,000 COP participants, and the adrenaline needed to keep up with the chaotic schedule distracted me from the reality of the situation: we were convened to negotiate an existential threat.
With support from the Yale Center for Environmental Law and Policy (YCELP), I had the good fortune of attending the convention and I did it wearing two hats. The objectives of each hat were even somewhat contradictory in nature, which, in the end, reflected my conflicting sentiments toward the multilateral climate negotiations and particularly the role of small island states.
I am enrolled in an environmental protection clinic at Yale Law School, and I work with Islands First, a New York-based non-profit organization with a small staff and a mammoth objective: to build the capacity of the Alliance of Small Island States (AOSIS), one of the groups most vulnerable to climate change. A conundrum of the negotiation process is that the most vulnerable countries generally have the least capacity to influence the negotiations. Small island countries, for example, may arrive with a delegation of six while the United States arrives with a delegation of 75. The diplomatic schedule is as demanding as it is confounding with plenaries, informals, informal informals, and drafting groups occurring simultaneously in multiple tracks, small delegations struggle to leverage their voice. Islands First helps to remediate this discrepancy by coordinating extra hands and interns such as myself to cover AOSIS priority meetings and provide research as needed. By strengthening representation, Islands First strives to bring about meaningful environmental policy reform.
In addition to my role with Islands First, I was at COP to organize an event that explored alternative routes to reducing greenhouse gas emissions, culminating a semester of research by students in the Yale Law School course, “Climate Change and the International Court of Justice”. The Ambassadors for Responsibility on Climate Change, or ARC, in 2011 began an initiative to request an advisory opinion from the International Court of Justice (ICJ). The initiative sought a judicial opinion to define a state’s responsibility to reduce harmful greenhouse gas emissions based on established international legal concepts, including the precautionary principle and the prevention of transboundary harm (for an explanation of these legal concepts, please see Christophe Schwarte’s presentation and the ICJ summary brochure).
The event featured presentations on this subject from four diverse panelists (bios provided below). ARC member Ambassador Lima of Cape Verde brought a humanitarian vision that emphasized, “We are all neighbors with joined doors” as a reminder to value solidarity. The Ambassador referenced the extreme vulnerability of small islands and least developed countries as constituting a right to ask the ICJ for an advisory opinion on state responsibility to reduce emissions.
Attorney Christophe Schwarte, executive director of the Legal Response Initiative (LRI), presented an expert’s technical evaluation of the initiative. His critical appraisal recognized that an ICJ advisory opinion is not the “silver bullet” to reducing emissions. However, the presentation’s message was that the initiative passes the legal litmus test for an audience before the ICJ. Schwarte concluded that the action would have important benefits, such as increasing public awareness and responsibility, activating political pressure, and establishing “building blocks” for principles of international environmental law, particularly in relation to the atmosphere.
For Professor Michael Dorsey, the ICJ initiative embodies proactive action to reinvigorate the “low-intensity, politically possible, morally bankrupt conversations” of climate negotiations. This revision of the negotiation process could be achieved through an ICJ opinion that, if favorable, could create a paradigm shift towards a new international norm against greenhouse gases.
Yale School of Forestry & Environmental Studies’ student Dustin Schinn explained why an advisory opinion would be in the interest of all nations, including the biggest polluters and particularly the United States. An advisory opinion, Dustin explained, would reinforce the rule of law in responding to the international threat of climate change, and in the past the U.S. has been a proponent of such interventions. Furthermore, the economic costs of inactions in addition to the threat of climate change to international security and by extension U.S. national interest call for timely and effective action.
The four diverse perspectives – humanitarian, activist, student, and legal expert – resulted in a thought-provoking dialogue, evidenced in the post-presentation enthusiasm where the audience went to meet and greet the panelists. The event was a great success, and an encouraging symbol of the growing interest in the initiative, for which YCELP and Yale Law School are providing critical momentum.
Over the last twenty years, COP accomplishments in qualitative terms are at best modest compared to the urgency and scale of action required to prevent warming of a 3- to 5-degree magnitude. The plight of small islands continues to be largely overlooked, despite the efforts of groups like Islands First. I ponder that perhaps by attending the COP, these vulnerable island states are not only distracting from other efforts, but they are supporting a process in which a worthwhile outcome is politically infeasible. We might, therefore, ask: would islands be better served by not participating in the COP at all and focusing attention elsewhere? And within the negotiations, would their abstention be louder than their input?
Ambassador Stuart Beck of Palau, a small island in the Pacific, is an informed objector to the process. I can’t help but walk away from the 18th COP admiring the Ambassador’s decision, given my own growing feeling that the negotiation outcomes are pre-ordained by the specific instructions assigned to the negotiators from their country leaders back home. If this is truly the case, then through participation alone small islands are validating a broken process. Their validation of the negotiations is important because their sheer numbers help make the COP a democratic and representative process – what deficits there may be in size and resources, small islands make up for in numbers, as AOSIS represents 20 percent of total UN membership. Furthermore, small islands command a moral authority in the negotiations, which stems from extreme vulnerability to the issue at hand. This moral high ground is leveraged throughout the negotiation process through passionate interventions – for example, in Doha, the Philippines appealed to negotiators after their country was struck by a devastating typhoon during the COP.
By abstaining from the negotiations, small islands would send a very clear signal to the international community, that the negotiations have failed to reduce emissions in a timely fashion to prevent severe, sustained, and detrimental impacts to small island nations. Scientific research supports this statement, as the fourth report by the Intergovernmental Panel on Climate Change (IPCC) identified a global peaking year of 2015 in order to mitigate the worst of the effects for island states. Proactive and creative alternatives, such as the ICJ advisory opinion, will become increasingly viable as the COP negotiations fail to deliver a meaningful reduction in emissions year after year. Given their vulnerable position, it is likely that small island states, and their sympathizers and supporters, will have to pioneer a pathway forward.
Biographical information for the moderator and four speakers on the ICJ panel
Moderator: John Foran
Dr. John Foran is Professor of Sociology and Environmental Studies at the University of California, Santa Barbara, and co-Director of the International Institute of Climate Action and Theory, or iicat.at.
Ambassador Antonio Lima
Ambassador Antonio Pedro Monteiro Lima is the Permanent Representative of Cape Verde to the United Nations. Prior to starting his current appointment in 2007, Ambassador Lima was the Political and Diplomatic Adviser to the President, a post he held since August 2001, while serving concurrently as the Head of State’s Permanent Representative to the International Organization of La Francophonie and Chairman of the National Francophonie Committee. From January 1999 to June 2001, he was stationed in Lome, Togo, as Director of the Communications, Compensation, and Development Fund of the Economic Community of West African States (ECOWAS). He was the Fund’s Secretary-General from June 1992 to December 1998. He was Secretary of State for External Affairs and Emigration from 1990 to 1991, and served as Director-General for Political, Economic and Cultural Affairs in the Ministry of External Affairs between 1988 and 1990. From 1985 to 1987 he was the Diplomatic Adviser to the Presidency.
Attorney Christophe Schwarte is the Executive Director of the Legal Response Initiative (LRI) - a network of lawyers that provides free legal advice to developing countries and observer organisations in connection with the climate negotiations. Before joining the Legal Response Initiative, Christophe worked as a senior lawyer at the Foundation for International Environmental Law and Development (FIELD) and served with the International Tribunal for the Law of the Sea for over six years. Christophe is a qualified lawyer with over 12 years of practical experience in different arenas of international environmental law. He holds an LLM from the School of Oriental and African Studies and is a member of the International Law Association's Committee on the Legal Principles related to Climate Change.
Dr. Michael K. Dorsey is Visiting Fellow and Professor of Environmental Studies in Wesleyan University’s College of the Environment and serves as a Director on the Sierra Club’s National Board. From 2010 to 2012, Michael was the Director of Dartmouth College’s Climate Justice Research Project. For more than two decades Michael Dorsey has provided strategic guidance and advice to governments, foundations, firms, and many others on the interplay of multilateral environmental, climate, and biodiversity policy, including for the Clinton administration. He was a member of Senator Barack Obama’s energy and environment Presidential campaign team, and in 2010, Lisa Jackson, the head of the US Environmental Protection Agency, appointed Michael to her National Advisory Committee. Professor Dorsey’s highly cited work seeks to understand how institutional and organizational behavior explain and inform efforts to manage the environment and to effect a just transition to sustainable development.
Dustin Schinn is a second year Master’s student at the Yale School of Forestry & Environmental Studies where he focuses on the economics, international policy and governance of climate change. Previous to that, he conducted research in the field of physical environmental sciences at the Potsdam Institute for Climate Impact Research, the Northern Rivers Institute, and the Smithsonian Tropical Research Institute. He became especially interested in sustainable development and climate change through his recent internships at the Permanent Mission of Germany to the United Nations and at the Global Environment Facility. For more information please refer to http://environment.yale.edu/profile/dustin-schinn.
Tuesday, December 11, 2012
By Guest Author, Nora Hawkins, Yale F&ES '14
On December 5, as part of the Yale Center for Environmental Law and Policy’s ongoing webinar series on Emerging Issues in Shale Gas Development, Florida State Law Professor Hannah Wiseman provided a comprehensive overview of the current legal regimes governing shale gas development, including state and federal statutes, local zoning, agency directives, and the common law.
While shale gas is currently regulated at each of these levels, Professor Wiseman emphasized that states are the central hub in this process because states typically issue the primary permits required to develop shale resources. A significant issue, which Professor Wiseman referred to as the “elephant in the room,” is whether the federal government or the states should take the lead in regulating hydraulic fracturing. (And what the role of local governments should be.) Ultimately, Professor Wiseman suggested that states should continue to play a major role, but she believes that efforts are needed to improve and, to at least some extent, standardize current state regulations.
In her presentation, Professor Wiseman addressed regulatory issues at each phase of the shale gas development process, including regulation of seismic testing, development of access roads and drilling sites, drilling and casing of wells, storage and disposal of drilling waste, water withdrawal, hydraulic fracturing, flowback water, and gas venting and flaring.
This blog focuses on a few regulatory issues that Professor Wiseman discussed in the context of well drilling and casing and hydraulic fracturing. Professor Wiseman’s presentation slides and a recording of her full presentation on "Understanding and Improving Regulation of Shale Gas Development" are available here and here, respectively.
Regulating at the Drilling Stage: Well Casings and Groundwater Contamination
Preventing groundwater contamination is a high priority in shale gas regulation and requires, among other things, effective standards for well casings. In fact, Professor Wiseman noted that one of the most contentious issues that has arisen in shale gas development—the potential for methane contamination of drinking water—is primarily an issue of well drilling and casing rather than of hydraulic fracturing. (Though the term hydraulic fracturing or “fracking” is sometimes used imprecisely to refer to all stages of shale gas development, hydraulic fracturing is but one stage in the process.)
In regulating groundwater pollution from faulty well casings, Professor Wiseman noted that it is crucial to obtain baseline data. If shale gas wells are improperly drilled and cased, groundwater can be contaminated by methane and other pollutants, such as iron, manganese, and dissolved ethane. However, because some groundwater sources have naturally elevated levels of these substances, elevated levels alone are not conclusive evidence of well-related pollution. To address this issue, several states have begun to require water testing both pre- and post-drilling to verify whether well-related contamination of groundwater has occurred.
Due to the so-called “Halliburton Loophole,” which exempts hydraulic fracturing from the federal Safe Drinking Water Act (exept where drillers inject diesel fuel), states are now almost entirely responsible for addressing drilling and fracturing-related groundwater pollution, such as by ensuring that wells are properly cased and cemented. Some states have filled this gap by regulating the types of casing materials that can be used, requiring bond logs, specifying minimum pressures that casings must be able to withstand, setting lengths of time that casings must set before wells can be used, and establishing minimum depths that casings must extend below groundwater.
One regulatory dilemma that Professor Wiseman highlighted is that many states currently apply only narrative standards to shale gas activities. While narrative standards may, on their face, require that certain environmental goals be met (e.g., no leakage from well casings), such standards do not prescribe specific measures (or technologies) to meet their goals, and this lack of implementation guidance can sometimes be problematic for regulators, who must issue permits and assess compliance.
Regulating at the Fracturing Stage: Surface Spills, Air Pollution, and Blowouts
At the hydraulic fracturing stage, one issue that has received considerable public attention is whether or not operators should be required to disclose the chemicals they use during the fracturing process. Professor Wiseman noted that while most states require some type of information disclosure, many do not require full disclosure if drillers consider the chemicals that they use to be “trade secrets.” These limitations create uncertainty about the composition of fracturing fluids, which raises concerns about the full risks of groundwater contamination. Lack of disclosure may also hamper efforts to address surface spills when they occur.
Surface spills are an inherent risk during both the drilling and fracturing phases of shale gas development due to the machinery and chemicals used and stored at the drilling site and the contaminated flowback water produced after fracturing. A variety of spill response laws apply here, including, Professor Wiseman noted, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) which kicks in if sufficient levels of non-diesel and non-gas contaminants are spilled. But effective prevention of surface spills and, when spills do occur, limitation of their harms also requires pre-drilling measures, such as mandated drilling setbacks from sensitive natural resources. As a precursor to development, some states also require development of spill prevention and control plans and/or mandate that operators obtain environmental pollution coverage in the form of insurance or bonds.
In addition to water quality concerns, well fracturing and subsequent gas production can lead to issues of air pollution. As recently discussed on this blog, states have adopted air quality regulations of varying stringencies. At the federal level, the U.S. EPA also recently issued regulations under the Clean Air Act, which will limit the release of volatile organic compounds.
Two relatively rare but critical risks during the fracturing stage are well explosions and high-pressure emissions of fluids from equipment accidently left open at the surface. To avoid such problems, many states require installation of blowout equipment at well sites, which allows pressure to be controlled and released when necessary.
To learn more about these and other shale gas regulatory issues, you can download Professor Wiseman’s presentation slides here, and view the recording of her webinar here:
Understanding and Improving Regulation of Shale Gas DevelopmentNew Project from YCELP on Vimeo.
Tuesday, December 04, 2012
By Josh Galperin, Associate Director
What Climate Change Can Do About Property Law*
*With Apologies to Professor Doug Kysar
Harvey and Phyllis Karan are lucky that their beachfront home on the Jersey shore suffered little damage from Hurricane Sandy. Not long before Sandy hit, the Army Corps of Engineers completed a dune replenishment project, raising a dune in front of their home and providing protection from the storm surges that devastated much of the coast only one month ago.
In its aftermath, Sandy has sparked discussions about how communities along the Atlantic coast can prepare for the more frequent and more intense storms that may result from climate change. Experts have recommended constructing a sea wall to protect New York City at a cost of perhaps $6 billion, for example. Dune replenishment is a more modest effort to reduce the impacts of major storms.
But, the Karans’ situation demonstrates that even modest efforts to prepare for climate change may be no match for the nuances of property law.
When the Army Corps raised the dunes in front of their home, the Karans lost some of their spectacular view of the Atlantic and a small strip of land on which the new dune was constructed. Because this was a government project on private land, the government was required to pay the Karans compensation for the negative impact that the dune raising had on their property. The government offered $300 the Karans demanded $500,000.
Back when this disagreement arose, nobody predicted that Sandy would cause the devastation that it did, though all of the parties knew that improved dunes would protect beachfront property. To that end, the government argued that any harm to the Karans should be balanced against any benefit (i.e., storm protection) that they would get from the more robust dunes. Regrettably, property law does not account for even the house-saving benefits that the government provided the Karans.
Courts recognize two types of benefits that a landowner might receive from a government project like dune replenishment: (1) general benefits and (2) specific benefits. General benefits are those that the public at-large can enjoy. Specific benefits are those that are unique to only a single landowner. Specific benefits must be unique both in their degree and their nature.
For example, if the government builds a road across a landowner’s property, the public at-large may benefit from faster travel. The landowner herself, who is now very close to the new road, might benefit even more from quick access due to her proximity, but the nature of her benefit—faster travel—is the same for this landowner, her neighbors, and other travellers. In this example, the landowner’s added benefit is unique in degree but not in nature, and is thus a general rather than a specific benefit. Under property law, the government cannot subtract the landowner’s general benefit from the compensation it owes her for taking a portion of her property. On the other hand, if the government needed to drain a swamp to build the road, and by draining the swamp it made the landowner’s remaining land newly arable, then that landowner would also experience aspecific benefit, unique in its nature only to her. In this case the government could subtract the specific benefit of the new farmland from its compensation payment.
In the case of the Karans, the couple clearly benefitted from the dune project, which protected their home from Sandy’s damage. But protecting beachfront property from storm damage was exactly the general benefit that the government intended. Even if the Karans received a larger benefit than homes further inland, that difference is merely a difference of degree; it is not a specific benefit of a different nature.
When Sandy ravaged the Jersey coast, the Karans undoubtedly enjoyed an immense benefit insofar as their home is still standing and largely undamaged, but that is an advantage that the courts could not consider in this case. As such, the Karans benefit twice and get a windfall. The government has saved the Karans’ home and (if a pending jury award is upheld by the New Jersey Supreme Court), it must also pay the Karans hundreds of thousands of dollars for the privilege of saving their home.
Looking at the Karans alone, this legal doctrine seems unfair and no doubt terribly frustrating to those flooded by Sandy’s water rather than the govnerment’s money.
Looking at the problem more broadly, the limitations of property law could pose an insurmountably costly barrier to large-scale climate adaptation. At the scale of this particular dune replenishment project alone, 190 homeowners, including the Karans, received newly replenished dunes. If each of these homeowners received $375,000, the amount awarded to the Karans, the local government would need to pay an extra $71 millionover and above the millions of dollars needed to carry out the engineering and completion of the dune project itself. On the scale of the entire Atlantic and Gulf coasts (just two of many vulnerable areas), financing adaptation could quickly become untenable under the strictures of property law.
Yale Law Professor (and Interim Director of the Yale Center for Environmental Law and Policy) Doug Kysar recently authored an article titled “What Climate Change Can Do About Tort Law,” in which he argued that tort law, which so far has failed to address the massive threat of climate change, must evolve to account for the human demand for a legal framework and venue that addresses climate harms.
Before Hurricane Sandy, the Karans’ story may not have seemed so astonishing. But now, post Sandy, with the threat of climate-instigated property destruction more obvious than ever, the limits of property law have been laid bare. The legal doctrine that entitles this couple to hundreds of thousands of dollars seems increasingly inappropriate in a changing climate world.
With the Karans’ legal case now in front of the New Jersey Supreme Court, it may be time for jurists to think about what climate change can do about property law.
On December 11, 2012 CBS Evening News ran the following piece on the dune projects along the New Jersey coast.