On the Environment
Energy & Climate
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.
Monday, December 03, 2012
By Guest Author, Gabe Scheffler, Yale Law School '14
This post was co-written with YCELP Fellow Bruce Ho.
On Wednesday, December 5, from 3-4pm EST, Florida State University Law Professor Hannah Wiseman will present a webinar on “Understanding and Improving Regulation of Shale Gas Development” as part of the Yale Center for Environmental Law and Policy’s ongoing Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.”
Please click here to register to participate in this free online event.
As a lead-in to Professor Wiseman’s webinar, this blog focuses on one key area of environmental regulation—the regulation of air pollution from shale gas development—at both the state and federal levels. As Yale Professor of Hydrology Jim Saiers discussed in the Center’s first shale gas webinar earlier this fall, air pollution is one of many potential environmental concerns associated with shale gas development. Shale gas drilling can impact air quality and human health in several ways, including through the release of methane (the principle component of natural gas), which contributes to climate change; nitrogen oxides (NOx) and volatile organic compounds (VOCs), which can lead to both ground-level ozone and particulate matter (PM), which are in turn linked to heart attacks and respiratory morbidity; carbon monoxide; and hazardous air pollutants, such as benzene. This blog looks at the sources of these air pollutants and regulatory steps that states and the U.S. EPA have taken to limit this type of pollution.
Shale Gas Development and Air Pollution
In February, the National Oceanographic and Atmospheric Administration (NOAA) reported research suggesting that air pollution from natural gas operations in Colorado is much higher than previously understood. While this research is from one area only, and applies to natural gas operations in general rather than shale gas specifically, it raises concerns about the potential air pollution that could occur locally and globally as a result of the shale gas boom.
Air pollution can occur at many stages in the shale gas supply chain, from gas production to transportation, distribution, and use. At the production stage, shale gas wells can “leak” methane and VOCs into the atmosphere during the period between well drilling and hydraulic fracturing and the point at which newly drilled wells are connected to gas collection, processing, and compression equipment and pipelines. While “green completion” technology can be used to capture all or most of this methane and other gases, and thus avoid air pollution, this technology is not always used. In the absence of green completions, gas capture may be delayed until after the initial “flowback” and “produced” water flows out of the well.
In some cases, methane and other gases leaking from newly-fracked wells are burned or “flared.” Flaring converts the gas into less harmful substances, such as carbon dioxide (CO2). In other instances, methane and other well gases are simply “vented,” unchanged, into the atmosphere. Because methane is a much more potent greenhouse gas than CO2, flaring is better for the climate than venting. That being said, flaring is by no means a perfect solution since it still generates climate-polluting CO2, NOx, and other air pollutants.
Methane can also be released at other points in the natural gas supply chain, including from leaks in the pipelines used to transport the gas to market and from local gas distribution lines, as the New York Times recently reported. Dr. Ramon Alvarez from the Environmental Defense Fund discussed these methane leakage issues last month in the second installment of our webinar series. You can read a summary of Dr. Alvarez’s presentation and also view an archived recording of his webinar here.
Beyond methane leakage, other sources of air pollution associated with shale gas development include emissions from the machinery used to drill wells and transport gas and, where gas is used for energy, from the eventual combustion of this gas itself. For example, shale gas drilling involves a significant number of trucks (generally diesel) and other equipment. The internal combustion engines in these trucks, well-drilling machinery, and gas compressors produce air pollution in the form of CO2, NOx, and PM. When natural gas is combusted to generate heat or electricity, it also releases CO2. And while the CO2 emissions from natural gas are lower on a per-unit energy basis than other fossil fuels—e.g., coal and petroleum—the CO2 released during gas combustion still contributes to global warming at non-negligible levels.
Regulating Shale Gas Impacts on Air Quality
While some amount of air pollution from shale gas development is likely inevitable, the types and scales of these environmental impacts can be reduced through regulatory safeguards.
In their paper, “Regulation of Shale Gas Development, Including Hydraulic Fracturing,” Professor Wiseman and her co-author Francis Gradijan discuss current federal and state air quality regulations that aim to reduce this pollution. On the federal side, the EPA has established National Ambient Air Quality Standards (NAAQS) under the Clean Air Act for “criteria pollutants” (pollutants that are common throughout the U.S.) and technology-based standards for “hazardous air pollutants” (pollutants that are toxic or hazardous to humans).
Shale gas development produces both criteria and hazardous air pollutants. Yet Professor Wiseman notes that because the Clean Air Act focuses primarily on “major” sources, many EPA regulations do not apply to shale gas wells, which, while potentially cumulatively significant, generally do not individually emit sufficient quantities of pollutants to qualify as major sources. Professor Wiseman notes that the EPA may soon redefine its methodology for calculating major sources in a way that could bring more shale gas (and other natural gas) sites within the scope of its regulations although this step has not yet occurred.
There are, however, some situations in which EPA regulations do limit air pollution from shale gas wells. For example, Professor Wiseman explains that even “minor” gas operations may be subject to federal regulations if these operations are located in “nonattainment” areas, which are locations that currently exceed the federal NAAQS and are thus subject to more stringent requirements. Additionally, new gas compressor stations and existing stations that increase their hourly pollutant emissions are subject to technology requirements under EPA’s New Source Performance Standards (NSPS). EPA recently promulgated new NSPS for VOCs emitted from fractured and re-fractured wells, which will eventually require drillers to use green completions.
Nevertheless, the limitations of federal regulations mean that state law may often provide the only applicable air quality controls for many shale gas wells. Professor Wiseman writes that New York and Colorado currently have the strongest regulatory regimes in this respect, but that many states lack regulations to control or even monitor air pollution from shale gas wells.
As can be seen in the following table, air quality regulations for shale gas development in the five states – Texas, Louisiana, Oklahoma, Arkansas, and Pennsylvania – with the highest levels of shale gas production in 2010 (the most recent year for which data from the U.S. Energy Information Administration is available), vary widely. These regulations generally apply to both shale gas wells and conventionally-drilled natural gas wells.
(click to download)
The table, which draws from Professor Wiseman’s paper and research conducted by Resources for the Future (in which Professor Wiseman is also involved), shows that four of these five states regulate gas venting to at least some extent, such as by requiring flaring if emissions reach certain levels. However, Texas includes numerous exceptions to these requirements and Pennsylvania’s regulation prohibits venting only in cases “when the venting produces a hazard to the public health and safety” (e.g., due to a risk of explosion).
Most of these states also regulate emissions from other areas of the shale gas development process, though these regulations may be circumscribed in scope or, as in Pennsylvania, subject to significant exceptions.
Given that shale gas development is a relatively recent phenomenon, its air quality impacts—and the effects of specific regulations—are still uncertain. Thus, one key area of regulation is the extent to which states require monitoring and reporting, which can help policymakers better understand air quality impacts and regulatory outcomes. Monitoring and reporting are also critically important for compliance enforcement. Louisiana currently requires monitoring and recordkeeping for flaring and venting of natural gas and glycol dehydrators. Other states, such as Arkansas and Pennsylvania have conducted surveys of air pollutant emissions from shale gas development, which could help improve future efforts. Texas has implemented an air quality monitoring program in the Barnett Shale Area.
Understanding and Improving Regulation of Shale Gas Development
Whether these current regulations will ensure that air quality remains at an acceptable level is a key question for policymakers moving forward and for states that have yet to develop their own approaches to shale gas regulation. On Wednesday, December 5, we will address these issues explicitly as we discuss current local, state, and federal approaches to regulating shale gas’ air impacts; regulation of other shale gas impacts, including on water quality; and the implications of these current approaches for future regulatory regimes through Professor Wiseman’s webinar on “Understanding and Improving Regulation of Shale Gas Development.”
Fracking entails high pressure underground injection of large volumes of water mixed with chemicals, sand, and other substances, a portion of which returns to the surface as “flowback.” “Produced water” is naturally-occurring subsurface water, which also flows out of wells and may contain dissolved solids, metals, organic and inorganic compounds, and naturally-occurring radioactive material.
Friday, November 16, 2012
By Guest Author, Nora Hawkins, Yale F&ES '14
In the second installment of the Yale Center for Environmental Law and Policy’s Emerging Issues in Shale Gas Development webinar series, Dr. Ramón Alvarez, a senior scientist at the Environmental Defense Fund (EDF) presented research from a paper he recently co-authored on natural gas use and its implications for climate change.
Dr. Alvarez noted that natural gas, which is increasingly available due to a boom in domestic shale gas production, has several potential environmental and economic advantages over coal and oil. However, he also emphasized that these benefits will only fully materialize if natural gas production and distribution is done correctly. He described this qualification as a “big if.”
Quantifying Greenhouse Gas Emissions Throughout the Supply Chain
Many people believe that natural gas can be a gateway fuel to catalyze the United States’ movement away from carbon-intensive fuels and toward a cleaner energy economy because natural gas-fired power plants emit only half as much carbon dioxide (CO2) per megawatt-hour of electricity as do coal fired ones.
Dr. Alvarez confirmed this potential benefit but stressed that CO2 emissions from electricity generation are only part of the story. In fact, natural gas production can also contribute to (worsen) climate change through greenhouse gas emissions that occur during earlier stages of the supply chain.
To fully understand the climate tradeoffs between different fuels, their associated greenhouse gas emissions must be accounted for at each stage of the fuels’ lifecycles, from production to use.
Accounting for Methane Leakage
Natural gas’ climate impacts are not limited to the CO2 emitted during combustion. Rather, natural gas also contributes to climate change if the gas (methane), itself a potent greenhouse gas, escapes or “leaks” to the atmosphere during earlier stages of the supply chain.
In comparing natural gas to coal or oil, it is essential to keep in mind the amounts and different warming properties of both CO2 and methane. Because CO2 and methane persist in the atmosphere on different timescales and contribute different levels of warming, the total emissions of both greenhouse gases from different fossil fuels and the properties of the gases themselves must be accounted for and compared.
Building a More Nuanced Accounting Model for Emissions
Prior studies have used Global Warming Potential (GWP) to compare the relative warming effects of different greenhouse gases and fossil fuels, but Dr. Alvarez argued that GWP can be misleading.
Specifically, because GWP looks at warming effects at only a single point in time (e.g., 100 or 200 years after emissions), it obscures the dynamics of emissions of different greenhouse gases, which, due to their specific lifecycles, create warming impacts on different timescales. For example, over a 100-year period, methane has 25 times the global warming impact of CO2 but if you consider a 20-year period instead, methane’s impacts are 72 times worse. These differences are due to the fact that an individual molecule of methane causes more warming than CO2 in the short-term, but methane also remains in the atmosphere for a comparatively short duration of only 12 years. CO2, on the other hand, causes less warming per molecule, but remains in the atmosphere much longer so its warming effects are more persistent.
To address this limitation, Dr. Alvarez and his colleagues have generated an alternative metric, which they dub Technology Warming Potential (TWP). TWP compares different fuels’ overall contributions to climate change across all greenhouse gases and timeframes. The figure below, taken from Dr. Alvarez’s study, shows the TWP for natural gas relative to three different fuel sources and uses.
The horizontal line on each graph (TWP = 1.0) represents the point at which natural gas has the same climate change impact as the alternative (conventional) fuel source. Points below this line signify that the climate impact of natural gas is less than that of the fuel to which it is being compared; points above signify higher climate impacts. For example, graph C shows that a natural gas power plant has roughly half the global warming impact of a coal power plant over a 200-year time horizon, but at time zero, natural gas’ climate benefits are lower—only 20 percent better than coal due to methane leakage.
Methane Leakage and Uncertainty in Leakage Rates
While the relative CO2 emissions of different fossil fuels are well known, a key unknown in the fuel comparisons is the rate of methane leakage from natural gas wells. Graphs A and B in the figure above assume that the rate of methane leakage from the natural gas supply chain is 3.0 percent of the total gas produced. Graph C assumes that this rate is 2.1 percent (the difference is based on varying assumptions about supply chains). The actual leakage rates are unknown, yet assumptions about natural gas’ benefits rely heavily on these leakage rates. For example, natural gas use in cars would provide climate benefits after 25 years instead of the 80 years shown in graph A if methane leakage were reduced from 3.0 to 2.0 percent. At 1.6 percent or less, natural gas would always have net climate benefits over gasoline.
The methane leakage rate is critical. As shown in the figure below (also from Dr. Alvarez’s study), when methane leakage rates, as represented on the y-axis, are lower, it takes less time to achieve net climate benefits from natural gas. The points at which the curves intersect the y-axis are the leakage thresholds below which natural gas has climate benefits over the conventional fuels for any time scale considered.
Dr. Alvarez emphasized that the threshold levels are not the only important points to consider. If, for example, the leakage rate of methane was found to be 4.0 percent, natural gas power plants would initially be worse for the climate than coal, but they would not be worse forever. In this scenario, beginning around 25 years after the conversion from coal-fired power plants to natural gas-fired ones—and continuing on into the future—there would be net climate benefits from having moved away from coal.
If natural gas is to replace other fossil fuels, then it is critical not only to understand the relative climate impacts of CO2 and methane, but also to find ways to minimize methane leakage in the natural gas supply chain. Dr. Alvarez concluded his presentation by mentioning that EDF is currently working with several companies in the natural gas industry to better measure and reduce the level of uncertainty about methane leakage at every stage of the natural gas production process. During the question and answer session, he mentioned that “green completions” of hydraulically-fractured shale gas wells could be a cost-effective strategy for reducing methane leakage. Green completions represent one key step in resolving the “big if” of whether natural gas production and distribution are being carried out correctly so that the theoretical climate benefits of natural gas can be realized in reality and when considered on any timeframe.
Dr. Alvarez’s powerpoint presentation is available for download here, and the webinar recording is available for viewing here:
What It Takes To Get Sustained Climate Benefits From Natural Gas from YCELP on Vimeo.
Thursday, November 15, 2012
By Josh Galperin, Associate Director
In his first post-election news conference President Obama put to rest the speculation that he might be preparing to take serious and comprehensive action to combat climate change.
While acknowledging that global climate change is a real danger and agreeing that his administration has not done enough to fight the threat, the President declined to offer any specific plan or even general commitment for how the United States might address climate change in the next four years. Instead, President Obama reminded the public that crafting a political solution to climate change is a difficult task, saying:
“I don’t know what either Democrats or Republicans are prepared to do at this point because this is one of those issues that is not just a partisan issue. There are regional differences. There’s no doubt that for us to take on climate change in a serious way would involve making some tough political choices.”
Although the Obama administration took some actions in its first term, including first-ever standards for new coal plants (although very few new coal plants are planned) and fuel efficiency standards for motor vehicles, there has been speculation and hope that the Administration would make a push for broad Congressional action.
The political difficulties of such action are no secret. On the other hand, the President has taken on and succeeded at other difficult political tasks such as passing his healthcare reform law. Of course that effort happened with a Democratic majority in the House of Representatives, which no longer exists. The healthcare battle may, in fact, have been the very reason that the Democrats lost control of the House.
The President did not rule out any new effort in the next term, but he did put an end to the almost giddy expectations. Luckily, there is still hope for mitigating climate change even without the United States. The Yale Center for Environmental Law and Policy, Yale Climate and Energy Institute and the Oscar M. Ruebenhausen Fund at the Yale Law School co-hosted the international conference “Global Climate Change Policy Without the United States: Thinking the Unthinkable.” The conference took for granted that the U.S. will not enact national climate legislation and then offered many technologies, legal mechanisms, sub-national programs and private sector initiatives that could move the globe in the right direction.
The Yale conference, perhaps, offers an implicit suggestion that as President Obama reflects on his “tough political choices” he should remember that many other nations, with less responsibility on their shoulders, have managed to surmount the politics and take action. Sooner or later the United States will either have to act or admit that our leaders simply do not have the courage or creativity to move forward.
Thursday, November 08, 2012
By Josh Galperin, Associate Director
Early Wednesday morning President Obama mentioned climate change for the first time in a long time. Couched in a list of problems that the next generation will face, President Obama briefly mentioned “the destructive power of a warming planet” in his victory speech on Wednesday morning. Later in the day Senate Majority Leader Harry Reid also said that he hopes the U.S. Senate can address climate change.
Even overlooking this limited enthusiasm, it is difficult to believe federal climate action will be a major theme in the next Congress – but perhaps that doesn’t matter.
Amid the talk of climate action yesterday the Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute (YCEI) co-hosted Dorothy Barnett as part of the climate policy speaker series, “The ‘C’ Words: Addressing Climate Change Without Talking About Climate Change.” Dorothy is the executive director of the Kansas-based non-profit Climate and Energy Project (CEP), which works throughout the lower Midwest.
Dorothy’s region is consistently hostile toward federal or even state climate policy; however, as Dorothy explained last night, there are plenty of effective local and regional tactics for dealing with climate change (without talking about climate change).
CEP has created successful programs such as the Take Charge Challenge, Kansas Interfaith Power and Light and HART, the Heartland Alliance for Regional Transmission, all of which build non-traditional partnerships to address things such as economics, jobs, faith and energy independence.
The Take Charge Challenge, for example, was a competition between residents of six Kansas towns to save the most energy over the course of a year. Building on the spirit of friendly competition and the money that individuals can save by reducing their energy use, the towns and local electricity providers worked with residences to switch light bulbs, install programmable thermostats and undertake home weatherization, among other energy saving measures. The winning town reduced energy use by 5 percent over the course of a year. More importantly, the competition showed that people are willing to take the personal action necessary to address climate change, but they do not need to take action because of climate change.
In response to an audience question last night, Dorothy said she was hopeful for federal climate action, but as her experience shows, there is more than one way to make progress. President Obama and Majority Leader Reid have a big and important task ahead of them, but they will have (unwitting) help from political opponents and climate skeptics in places like Kansas where personal steps to save money and create local jobs will move us all in the right direction.
Monday, November 05, 2012
By Bruce Ho
If you are familiar with shale gas, you probably have heard the argument that this resource has the potential to be a “bridge” between today’s polluting energy mix and a clean energy future. This argument rests on three basic premises: (1) when burned for energy, shale gas, which is natural gas extracted from shale, emits less carbon dioxide and other air pollutants than either coal or petroleum; (2) there are large, economically-available shale gas resources in the U.S. that could be used to displace a significant portion of the coal used in our power sector and, potentially, the petroleum used for transportation; and (3) for technical, economic, or political reasons, renewable energy and savings from energy efficiency cannot yet provide for all of our energy needs – hence the need for a bridge to get from the coal and petroleum of today to the renewables and energy efficiency of tomorrow.
But while this argument makes at least some sense, significant questions remain. For example, how much cleaner is shale gas than coal and petroleum when you consider the full gas production lifecycle, from hydraulic fracturing (“fracking”) to eventual combustion? Further, even if shale gas is a cleaner fossil fuel, what will be the long-term effect of cheap and abundant gas on the adoption of even cleaner energy efficiency and renewables?
Answering these questions is critical to understanding how shale gas fits into the overall U.S. energy mix. Last month, the Yale Center for Environmental Law and Policy began exploring these issues in the inaugural presentation of the Center’s 2012-2013 Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.”
This coming Thursday, November 8 from 12-1pm EST, the Yale Center for Environmental Law and Policy will further explore, through a presentation by Dr. Ramon Alvarez, a senior scientist at the Environmental Defense Fund (EDF), the structural underpinnings of the bridge-to-clean-energy narrative by examining whether shale gas is likely to reduce or only exacerbate climate change. I highly encourage anyone interested in shale gas issues and energy policy more broadly to attend this free online presentation on “What It Takes To Get Sustained Climate Benefits From Natural Gas.” To register for this webinar, click here.
As a preface to Dr. Alvarez’s webinar, I outline below the basic climate case for shale gas as well as two issues that could undermine this case: the possibility that natural gas leakage in the supply chain could, rather than reduce climate change, lead to more global warming; and also the possibility that shale gas might displace cleaner renewable energy and energy efficiency and thus slow the country’s transition away from climate-polluting fossil fuels. Ultimately, understanding these two issues is essential to understanding whether shale gas can be a bridge to a clean energy future or is instead a bridge to nowhere – or worse.
The Basic Climate Case for Shale Gas
Shale gas is not a “clean” fuel. While burning shale gas releases less pollution than coal or petroleum, like any other fossil fuel, burning gas still releases carbon dioxide pollution and contributes to climate change. Moreover, as Yale Professor of Hydrology Jim Saiers discussed in the Center’s first shale gas webinar last month, there are a variety of non-climate related environmental impacts associated with shale gas drilling, including air and water pollution, water usage, and land disturbance. While some of these impacts may be avoidable with proper regulation and industry best practices, some will likely still occur.
Yet the climate case for shale gas does not rely on the total elimination of climate-related impacts. Rather, the climate case is based on the fact that, on a per-unit energy basis, natural gas emits less carbon dioxide than either coal or petroleum (e.g., a kilowatt-hour of electricity generated from natural gas results in less carbon pollution than a kilowatt-hour from coal). Recent data from the U.S. Energy Information Administration (EIA) bear out the potential climate benefits. According to the EIA, natural gas is beginning to displace coal in the power sector, largely as a result of domestic shale gas production. And this shift is at least partly responsible for a decline in carbon pollution from the U.S. energy sector in recent years. (Another significant reason was the recession, which caused total U.S. energy use to fall.) These data support the first two premises of the bridge-to-clean-energy narrative described above. The third premise – that natural gas is needed due to the current limits of renewable energy and energy efficiency – is a matter of debate. But even studies that show that existing clean energy technologies could satisfy U.S. energy needs often acknowledge that this shift is unlikely to occur overnight. Some researchers also argue that fast-starting natural gas power plants can help integrate variable wind and solar energy by helping fill in gaps in renewable generation. If these propositions are true, shale gas could very well help slow the rate of climate change relative to the status quo.
The Unknowns That Could Undermine This Climate Case
The problem is that shale gas’ contributions to climate change are not limited to the carbon dioxide it emits during combustion. Rather, natural gas, which consists primarily of methane, also contributes to climate change when it is released directly to the atmosphere – intentionally or accidentally – without being burned. In fact, methane is itself a potent greenhouse gas, which, in the near-term (20-year time horizon) is more destructive on an individual molecular basis than carbon dioxide by a factor of 50 or more. Carbon dioxide is the main driver of climate change because much more of it is released globally, but if large amounts of methane also “leak” from the shale gas supply chain, the climate impacts of this resource could be significantly higher than the bridge-to-clean-energy narrative assumes.
The current rate of methane leakage from shale gas wells is unknown. According to a study co-authored by Dr. Alvarez in the Proceedings of the National Academy of Sciences, methane leakage estimates range from 2% to more than 7% of total natural gas produced from shale gas wells. Any methane leakage reduces the potential climate benefits of shale gas relative to other fossil fuels. But for shale gas to be less damaging to the climate than coal, the total leakage from gas wells (as achieved through voluntary industry practices or regulatory mandates) would need to be less than 3.2% of the total gas produced. Anything higher than 3.2%, and shale gas could actually accelerate and worsen climate change relative to coal. In comparison to petroleum, which emits less carbon dioxide than coal but more than natural gas, methane leakage rates would need to be even lower to break even.
Further, while methane leakage is a critical issue, it is just one potential way in which shale gas could worsen climate change. If, for example, cheap and abundant shale gas delays the U.S. transition to renewable and more efficient uses of energy, then the net effect regardless of gas’ benefits relative to coal and petroleum might still be to cause more global warming. Of course, as noted earlier, fast-starting natural gas power plants might also help support increased utilization of variable wind and solar energy by being available to operate on short notice should wind or solar production unexpectedly decline (e.g., due to a sudden slowdown in wind velocities or unexpectedly high cloud cover). This is in contrast to coal plants, which can sometimes take days to start generating power. The net climate effect here could be complicated, though the net effect is ultimately what’s important.
Getting to the Bottom Line on Climate
Understanding these unknowns and determining answers is essential to understanding how shale gas fits into the current U.S. energy picture; the types of policies and practices that may be needed to minimize or avoid adverse shale gas impacts; and the role that shale gas may or may not be able to play in helping the U.S. transition to a clean energy economy.
In his presentation on Thursday, Dr. Alvarez will shed additional light on these issues and their complexities as he discusses the frameworks and research needed to ensure that shale gas development, which is already proceeding rapidly, contributes to a more positive rather than a more destructive climate future. In addition to registering to attend this free webinar, you can learn more about Dr. Alvarez’s research by reading his paper in the Proceedings of the National Academy of Sciences as well as his blog. You can also visit EDF’s website to learn more about the organization’s current work on natural gas, including an initiative to measure methane leakage rates from shale gas wells.
Coming up Next in Emerging Issues in Shale Gas Development
As the Emerging Issues in Shale Gas Development webinar series begins to look at specific policy responses to the environmental impacts of shale gas development, I am pleased to announce that the third webinar in this series will feature Florida State University Law Professor Hannah Wiseman, who has written several leading works on the state of U.S. shale gas regulations (e.g., Risk and Response in Fracturing Policy, Fracturing Regulation Applied, and Regulation of Shale Gas Development, Including Hydraulic Fracturing). On Wednesday, December 5, from 3-4pm EST, Professor Wiseman will discuss the current state of U.S. shale gas regulations, regulatory gaps, and ways in which federal, state, and local regulations may need to change. You can register for Professor Wiseman’s webinar on “Understanding and Improving Regulation of Shale Gas Development” by clicking here.
Thursday, October 18, 2012
By Guest Author, Gabe Scheffler, Yale Law School '14
On October 10, in the first event of this year’s Policy Workshop Webinar Series Emerging Issues in Shale Gas Development, Dr. Jim Saiers, Professor and Associate Dean of Academic Affairs at the Yale School of Forestry and Environmental Studies, joined the Yale Center for Environmental Law and Policy to present an overview of shale gas development and its implications for the environment. Focusing on Pennsylvania’s Marcellus region, Professor Saiers discussed the history of shale gas development in the United States, the processes that are used to extract it, and their potential environmental consequences. Throughout the talk, Professor Saiers highlighted the state of existing research and the diversity of opinions on these issues.
Growth in Shale Gas Development
As Professor Saiers noted, the past decade has witnessed a twelve-fold increase in the United States’ shale gas production, and currently, natural gas satisfies about a quarter of the U.S.’s total energy needs. This tremendous growth is due in large part to George Mitchell, the founder of an oil-service company, who pioneered a technique which combines horizontal drilling with high-volume slick water fracturing to reach and extract shale gas deposits.
Shale gas extraction has several stages. Before gas companies can commence drilling, they first must lease land, acquire the relevant permits, and prepare the drilling site (an intensive process that can involve clear-cutting forests or “re-engineering” the landscape to accommodate the drilling pad). The drilling and casing process takes several weeks. In the Marcellus shale, a well may extend 5,000 to 7,000 feet underground before turning horizontally. Cement casing must also be installed to maintain the integrity of the wellbore and to isolate it from surrounding water aquifers. Hydraulic fracturing or “fracking” involves shooting holes in the lateral portion of the casing with a perforation gun, and then pumping large volumes of a water-based fluid containing chemicals and sand through the borehole and out of the perforations in the casing at high pressures. This increases the fluid pressure within the shale formation and generates fractures.
Potential Environmental Impacts
This process has a number of potential environmental implications. One, featured prominently in the movie Gasland, is that the methane released during extraction could contaminate household drinking water. Professor Saiers observed that if gas wells are improperly cased, then methane can indeed migrate along the borehole and escape into drinking water aquifers. However, he cautioned that these leaks can be avoided by following best practices, and noted that methane sometimes occurs naturally in aquifers or could originate from abandoned oil and gas wells not associated with fracking.
Another concern is that the chemicals used in fracking will contaminate groundwater. Yet the seriousness of this risk is a subject of dispute. For example, Rebecca Wodder, President Obama’s former nominee for Assistant Secretary of Interior for Fish, Wildlife, and Parks, has charged that fracking creates a toxic chemical soup that pollutes groundwater and streams. By contrast, Lisa Jackson, the Administrator of the U.S. Environmental Protection Agency, has stated that she is not aware of any proven case in which the fracking process itself has affected water. Professor Saiers conceded that it’s difficult to reconcile these opposing views. However, he observed that the most likely way contamination would occur would be through surface spills and “flow-back” of frac-water, which could happen during transportation, through accidental releases at the drill sites, or because of leaks in the pits that store flow-back water.
An additional concern is the impact that shale gas has on the climate. While burning gas is cleaner than combusting coal, the carbon emissions footprint of burning gas is still non-negligible (roughly 50% of the carbon emissions from coal). Moreover, the process used to extract shale gas can release or “leak” this gas, a.k.a. methane, which is itself an extremely potent greenhouse gas, into the atmosphere. Unfortunately, estimates of how much methane is released during the extraction process vary dramatically. Thus, more research on this subject is urgently needed, since the total climate impact of natural gas development depends to a great extent on the magnitude of this methane leakage. (This critical issue will be the subject of the second webinar in the Emerging Issues in Shale Gas Development series from 12-1pm EST on Thursday, November 8, when Dr. Ramon Alvarez discusses “What It Takes To Get Sustained Climate Benefits from Natural Gas.”)
Shale gas development could have other negative environmental consequences as well, including landscape disturbance and decreased air quality. During the Q&A session following Professor Saiers’ presentation, one question also concerned the potential of fracking to lead to earthquakes. Professor Saiers stated that there is a general scientific consensus that fracking can induce some small amounts of seismic activity, but that current research suggests that it may do so at a level that is not threatening. Professor Saiers also discussed the large volumes of water used in fracking, and noted that the impact of this practice will vary depending on regional water availability.
Overall, Professor Saiers presented a relatively optimistic view of the potential to develop shale gas, particularly in the Marcellus region, in an environmentally responsible manner. However, he cautioned that more research is still needed on shale gas’ environmental impacts, and that proper regulatory controls and industry best practices (e.g., proper well construction standards, drilling at depths that are sufficiently below drinking water aquifers, and monitoring around gas wells) are necessary to prevent environmental harms. Based on our current understanding, Professor Saiers believes that shale gas can be produced safely if the right safeguards are in place, and he maintained that current development does appear to be safe in a large number of cases.
Future webinars in the Emerging Issues in Shale Gas Development series will continue to explore these critical issues of environmental science and policy. A recording of Professor Saiers’ webinar presentation is available for viewing here:
 “America’s Bounty: Gas Works,” The Economist, July 14, 2012, http://www.economist.com/node/21558459
 For example, in a recent interview with Yale Center for Environmental Law and Policy Fellow Bruce Ho, Dr. Sheila Olmstead from Resources for the Future mentioned that habitat fragmentation as a result of increased shale gas development is a potentially significant environmental impact that has yet to be fully considered. The Nature Conservancy is one organization that has been looking at this issue.
Thursday, October 11, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
Pollution does not respect borders.
This old adage is one of the first messages to arise from last week’s International Workshop for a Better Environmental Performance Index (EPI): Towards a Next Generation of Air Quality Monitoring – a workshop jointly hosted by Yale and Columbia Universities and the Asian Institute for Energy, Environment and Sustainability at the Seoul National University in Korea.
During a technical session on monitoring and modeling of heavy metals, Dr. Seung-Muk Yi of Seoul National University presented his research findings on the sources and movement of mercury in the Korean environment. His findings were stark.
Mercury is typically released into the air when fossil fuels containing mercury are burned for power generation. Though South Korean emissions of mercury are about one-tenth that of US emissions (18.5 tons a year compared to 143 tons a year), average blood mercury concentrations in Korean citizens are five times greater than average US concentrations.
As Dr. Yi presented, one-third of Koreans have blood mercury levels above those deemed safe by US health guidelines – putting them at risk for neurological health effects and neurodegenerative disorders.
What accounts for this looming public health threat?
Two phenomena combine in Korea to create this potential health disaster:
1. Koreans consume a lot of seafood (74-95 grams a day, about five times the US average); and
2. Korea is near China.
According to Dr. Yi, China’s annual emissions of mercury are nearly four times greater than the US’s and nearly 30 times greater than Korea’s.
By tracing mercury concentration changes over time across monitoring sites within Korea, scientists in Seoul were able to implicate Chinese emissions in Korea’s pollutant problems.
“As our local emissions went down [following new regulations],” he said, “mercury concentrations in our rural and remote stations remained constant.”
China contributed the most to our high mercury events, he said, noting that more than 60 percent of high mercury events in Seoul, when government air monitors detected unusually acute mercury levels in the air, were the result of air masses carried from China.
Coal combustion in Hunan, metal smelting in Guizhou, and dust storms in the Gobi Desert were all implicated in Korea’s pollution problem. Meaning what happens in China doesn’t stay in China.
Lessons like this – an old lesson made new - underscore the importance of international workshops like this one where atmospheric scientists, chemical engineers, and policy experts from around the world wrestled with the very modern problem of global pollution. Hopefully, the knowledge generated here in Seoul won’t stay here.
Sunday, October 07, 2012
By Guest Author, Bruce Ho, Environmental Law & Policy Fellow
Earlier this year, the U.S. Energy Information Administration (EIA) predicted that within the next decade the U.S. will become a net exporter of natural gas for the first time since the 1950s. This marks a dramatic shift from only a few years ago when the EIA predicted that domestic natural gas demand would continue to outstrip supplies and that U.S. natural gas imports would rise with seemingly no end in sight. Even as recently as 2011, the EIA predicted that the U.S. would remain a net importer of gas through at least 2035.
So what happened? The answer, quite simply, is shale gas.
The figure to the left, from the EIA Annual Energy Outlook for 2006, 2009, and 2012, details (a) projected imports in 2006 before the shale gas boom; (b) projected imports in 2009 near the beginning of the boom; and (c) projected imports in 2012. LNG is liquefied natural gas.
Until recently, shale gas, which is natural gas produced from shale, had not been an economically recoverable resource. But now, new technologies and techniques – namely horizontal drilling and hydraulic fracturing, or “fracking” – are providing ready access to domestic shale gas reserves. Many commentators have hailed this development, which is upending energy markets, as a game changer for the environment. Abundant shale gas, they argue, will help protect the environment by providing a cheaper, cleaner energy alternative to dirty-burning coal. Supporters also argue that cheap and abundant gas is a boon for the economy, energy independence, and national security.
Yet as Yale Center for Environmental Law and Policy (YCELP) Associate Director Josh Galperin recently noted, many others are concerned that shale gas development is proceeding full bore without sufficient understanding of the environmental consequences associated, not with its burning, but with its extraction, including air and water pollution and significant water use requirements. Moreover, while burning natural gas releases less carbon dioxide than other fossil fuels, it still contributes to climate change, and natural gas (which is simply methane) is itself a potent global warming pollutant. Uncertainty about the level of methane that escapes to the atmosphere during drilling and from leaks in the supply chain means that the climate benefits from shale gas are still far from certain.
YCELP's Policy Workshop Seminar Series: Emerging Issues in Shale Gas Development
This year, YCELP will explore the rapid rise in production of domestic shale gas and its potentially significant effects on environmental and energy policy through our second annual Policy Workshop Webinar Series. This year’s series, which focuses on “Emerging Issues in Shale Gas Development,” will consider shale gas opportunities, risks, and uncertainties through presentations by experts from a variety of sectors and fields. The series aims to provide participants with the latest scientific knowledge and policy expertise, and all webinars, which will be conducted entirely online, are free and open to the public (though registration is required to receive the log-in details), and will also be archived for later viewing.
Toward this end, YCELP is excited to begin the Emerging Issues in Shale Gas Development series with a trio of fall semester speakers, who will introduce and address a variety of important topics:
· On Wednesday, October 10 from 4-5pm EDT, Yale Professor of Hydrology Jim Saiers will provide an overview of the latest science on the environmental impacts of shale gas extraction through fracking. Interested individuals can register to participate in this webinar by clicking here.
· Professor Saiers will be followed on Thursday, November 8, from 12-1pm EST, by Ramon Alvarez, a senior scientist at the Environmental Defense Fund, who will discuss the potential climate benefits and challenges posed by the shale gas boom.
· And finally, the fall semester line-up will conclude on Thursday, December 6, from 12-1pm EST, with Bill Dornbos, YCELP’s previous Associate Director and now the Connecticut Director of Environment Northeast, who will discuss the current regulatory structure for shale gas development as well as the effects that this development is already having on state energy planning.
A full roster of additional webinar speakers will follow in the spring.
As a prelude to the series, YCELP recently sat down with Sheila Olmstead, who is a Fellow at Resources for the Future, to discuss some of the implications of the shale gas boom.
As this interview attests, the shale gas boom has already begun, but as the EIA’s changing figures reveal, the future is also difficult to predict. Whether domestic shale gas development will continue to grow rapidly, as suggested by the EIA’s most recent figures, or proceeds instead on some other trajectory, will depend in large part on resolution of the uncertainties that will be discussed in our upcoming series.
Monday, October 01, 2012
By Guest Author, Josh Galperin, YCELP Associate Director
These days it seems there is constant release of new information about hydraulic fracturing. Recent news from a federal court in New York, however, is a departure from this trend. A September 24th ruling in State of New York v. U.S. Army Corps of Engineers has rejected an attempt to require officials at the Delaware River Basin Commission (DRBC) to gather and release potentially valuable new information on the anticipated effects of hydraulic fracturing on the Delaware River Basin.
The Delaware River Basin is a coveted landscape that provides drinking water to New York City and Philadelphia, among other locales. Because the water resources of the Basin are important to multiple states and communities, they are cooperatively governed by the DRBC.
Underlying much of the Delaware River Basin is the Marcellus Shale, a rich source of natural gas that has only recently become available and economic to exploit. Recognizing the potential environmental, economic and cultural impacts of significant new shale gas development, in 2010, DRBC began the process of developing regulations regarding natural gas extraction within the Basin. DRBC also determined that it would not permit any gas extraction in the Basin until such time as it adopts final regulations. Over the past two years DRBC has drafted and proposed – but not yet voted to adopt – new regulations that would lift the current ban on natural gas extraction in the Basin and permit regulated drilling.
In this interim period, the State of New York and a number of NGOs sued DRBC (and a series of federal partners) claiming that the National Environmental Policy Act (NEPA) requires DRBC to prepare an Environmental Impact Statement (EIS) detailing the potential impacts of its proposed gas drilling regulations.
Generally speaking, NEPA requires federal agencies to prepare an EIS whenever they are undertaking a project that will have significant environmental impacts. In the EIS, the federal agency considers the environmental implications of its project and evaluates possible alternatives. One important benefit of the EIS is that it is a single, comprehensive source for an abundance of data and information on the environmental impacts of a proposed federal project or program.
Unfortunately, the U.S. District Court for the Eastern District of New York ruled on September 24th that New York State and the other plaintiffs cannot continue a lawsuit that might have forced DRBC to complete an EIS at this stage. This decision not only delays DRBC’s potential obligation to perform environmental review, but ratifies DRBC’s poor planning, which so far has proceeded with development of regulations without the benefit of an environmental review.
The primary question that the court addressed was whether New York State and the other plaintiffs would suffer injury if DRBC did not complete an EIS. In similar situations, other courts ruled that failure to complete an EIS could lead to “uninformed decisionmaking,” which amounts to an injury, and, because of this injury, past lawsuits were allowed to move forward. However, the court here looked critically at the past cases and found that “in each case, the government had acted in the form of a final order, regulation, plan, denial of a request, or statute.” In other words, the court determined that failure to complete an EIS could only injure a plaintiff when it is attached “to an actual agency action,” which, according to the court, has not yet occurred in the DRBC case.
This reasoning appears strained. NEPA is designed to inform decisionmaking, and most federal agencies, at a minimum, recommend that the required environmental review happen at an early stage of project development. Here, the court found that a review is not required before an “actual agency action.” Yet there is no reason that issuance of draft regulations could not be considered sufficiently “actual.” Issuance of proposed regulations should suffice because it is at this point that potentially injured parties will become fully aware of the existence and scope of the impending injury. In fact, at least one other court has specifically agreed that proposed action is enough to present a real threat of uninformed decisionmaking.
The court here sets up a straw man, saying that it “believes that the reasoning [of other courts, allowing plaintiffs to sue for failure to complete an EIS] cannot be extended indefinitely backward, to embrace internal agency deliberations, drafts or legal analysis . . .” But the official public issuance of proposed regulations is certainly more substantial than internal drafts, deliberations or legal analysis.
In reality, the threat of uninformed decisionmaking arises as soon as decisionmakers begin to consider regulations without the benefit of an EIS. As the court noted, it is not practical to require an EIS at very early stages, in part because there is not any concrete government action associated with early deliberations. Conversely, though, when an agency officially issues proposed regulations without an EIS, it is clear that the agency developed these regulations without complete information, and this is when the actionable threat emerges.
Aside from the legal arguments, the real trouble here is that the basis for this lawsuit was not merely a battle of pro- and anti-fracking factions. Rather, it was an effort to gather information, to put as much transparent analysis as possible into the public sphere, and to improve decisionmaking. As it stands, the fracking debate is heated but largely under-informed. A great many questions about fracking’s air quality, climate, community, water use, wastewater, groundwater, economic and electricity generation impacts are still unanswered. Had this lawsuit turned out differently, it could have led to important new insights.
Thanks to Bruce Ho, Research Scholar in Law, Coca-Cola World Fund Faculty Fellow, and Clinical Lecturer in Law at Yale Law School for his contributions to this post.
 State of New York v. U.S. Army Corps of Eng’rs, United States District Court for the Eastern District of New York, 11-CV-2599 (Sept. 24, 2012).
 Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002).
 See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir. 2006).
Thursday, June 07, 2012
By Guest Author, Corinne Bell, Pace University School of Law ‘13
Corinne Bell is a joint-degree student concentrating in energy systems and policy at the Yale School of Forestry & Environmental Studies and concentrating in environmental law at Pace Law School.
The Environmental Protection Agency’s Mercury and Air Toxics Standards (MATS), announced December 21, 2011, regulate power plant emissions in accordance with the 1990 Clean Air Act Amendments. These standards, which take effect April 2013, will prove to be a substantial planning challenge to grid planning and reliability.
Plants affected by MATS have two options: retrofit to meet the new standards within three years, or retire. More than half of the nation’s coal plants are over forty years old, and for a good portion of them, retrofitting will not be cost effective. The EPA estimates that the new rules will result in the retirement of 4.7 GW of coal-fired plants, while Brattle Group estimates the number to be around 50-65 GWs, or 15 percent to 20 percent of our current fleet. Independent System Operators (ISOs) and Regional Transmission Operators (RTOs) have serious concerns about how this will affect the reliability of the nation’s power grid.
ISOs are particularly concerned about the localized effects of decommissioned plants in transmission-constrained areas, including reduced service to certain load pockets. The Midwest ISO (MISO), covering all or part of eleven states in the Midwest, is one ISO that will be greatly affected by the new standards. MISO expects to retire 12.6 GW out of its current resources, totaling 114.5 GW. MATS will also increase pressure on marginal units, and regions are coordinating with neighboring generators and system operators to manage for outages and ensure resource adequacy. Other options being explored to lessen the blow include demand response and behind-the-meter generation. Demand response allows utility customers to adjust their consumption based on price signals and behind-the-meter generation is defined as generation that delivers energy to load without use of the transmission system (for example, solar panels on a residential roof).
In the instance that retrofitting an affected plant is viewed as a sound investment, managers have two big issues to overcome: supply chain and retrofitting timeline restraints and plant outage scheduling.
Two of the available retrofit options, flue gas desulfurization and fabric filters, require a timeline longer than the three years allowed under MATS. The timing issue is further complicated by the relatively small supply of these technologies; it is not possible for suppliers to meet in a timely manner the surge in demand created by MATS. MISO, for example, is looking very closely at these supply chain issues.
Given the large number of plants affected, retrofitting must be carefully scheduled to ensure that enough capacity remains online to meet demand. These retrofit outages will be much longer than standard maintenance outages, which ISOs and utilities have more experience scheduling.
And then there is the issue of who foots the bill. Someone has to pay for the retrofits; does the plant absorb these costs, or can they be passed on to the ratepayer?
While some have called MATS an “attack on coal,” it is only one of the many gathering challenges to coal. (1) The economics of coal power are faltering: coal prices have been on the rise while natural gas prices have fallen drastically. (2) Coal plants are much less efficient than combined-cycle technologies. (3) Proposed Cooling Water Quality rules would also greatly affect coal-fired power plants and, (4) if new plants are evaluated under New Source Review Standards, they could not be built without carbon capture and sequestration (effectively meaning that no new coal can be built). To point to MATS as a coal killer is an overly simplistic view; it should instead be seen as finally internalizing some of the negative externalities for which these plants have not been held accountable in the past.
 Energy Bar Association, Sixty-Sixth Annual Meeting, (April 26, 2012) Panel on EPA Regulation of Generator Emissions.
 MISO, EPA Regulations: Balancing Reliability, Affordability and Environmental Protection presentation to Energy Bar Association, Sixty-Sixth Annual Meeting.
 A MISO report on supply chain issues was expected in late April.
 Continental Economics, EPA Regulation of Generator Emissions—Key Market Issues, Energy Bar Association, Sixty-Sixth Annual Meeting.
Monday, June 04, 2012
By Susanne Stahl
The Yale Center for Environmental Law and Policy is very pleased to introduce Bruce Ho, who will be joining the Center and Yale Law School as an Environmental Law and Policy Fellow for the 2012-2013 academic year.
Mr. Ho is currently a Sustainable Energy Fellow at the Natural Resources Defense Council (NRDC) in Chicago where his research focuses on methods for accelerating the Midwest’s clean energy economy. He has worked on climate and energy issues for NRDC in Beijing, the California Air Resources Board, and the California Environmental Protection Agency as well as water quality and aquatic resource protection in northern California and his home state of Texas.
Mr. Ho is a graduate of Stanford Law School and the Yale School of Forestry and Environmental Studies; he holds a BA in History from the University of Texas at Austin.
YCELP: What initially drew you to environmental law and policy?
Bruce Ho: I have been interested in the environment and the outdoors since I was child, but I never saw this area as a career path – much less the passion that it has become for me – until my last semester in college when I enrolled, on a whim, in a class called Political Ecology. That course, and the wonderful professor who taught it – Professor Diana Davis, who is now at UC Davis – challenged me to think about how humans interact with our world and inspired me to pursue a new direction. In fact, I became so engaged that Professor Davis encouraged me to apply to graduate school, which ultimately led me to the Yale School of Forestry and Environmental Studies (FE&S). I owe her more than anybody for leading me to this path.
YCELP: You've spent time at the California Air Resources Board and the California Environmental Protection Agency as well as NRDC's Beijing and Chicago offices; given the geographic scope of your work, what do you see as some of the most pressing issues?
Bruce Ho: I also spent a summer working on groundwater in Texas, three years in California wine country at the state’s water quality agency, two years on the East Coast when I was a graduate student at FE&S, and some time in Europe as a law student participating in climate meetings, so I’ve been all over! Perhaps the most important thing that I’ve learned in my travels is that there is interesting and challenging environmental work to be done no matter where you are on all kinds of different issues. In the last few years, though, I have increasingly focused on energy and climate change, and I’d be hard pressed right now to point to anything more important than accelerating the movement toward cleaner and more efficient sources of energy – everywhere.
YCELP: What policy issues are you focused on right now?
Bruce Ho: Currently, I am working primarily on energy efficiency in the Midwest and the challenge of aligning the financial interests of utilities, which under traditional regulatory models profit by selling more electricity, with those of ratepayers and society more broadly, which benefit by avoiding the cost and pollution of expensive new power plants and reducing reliance on outdated, dirty old ones. In addition to my work on energy efficiency, which is by far the cheapest, cleanest, and fastest to deploy energy resource available, I am also working on electricity transmission planning and policies to accelerate the deployment of electric vehicles.
YCELP: What projects are you planning to work on during your time at Yale?
Bruce Ho: My project portfolio is still evolving, but as a fellow next year at YCELP and Yale Law School, one of my chief tasks will be to help instruct students in Yale’s Environmental Protection Clinic as they work on a variety of interesting and cutting-edge legal and policy issues. I also hope to help build the energy law and policy offerings available to graduate students and to continue working on some of the issues that I have been tackling at NRDC, such as figuring out ways to integrate increasing amounts of efficient and renewable energy onto the electric grid.
YCELP: Any environmental law & policy book recommendations?
Bruce Ho: I recently read Nature’s Metropolis by William Cronon, and I highly recommend this book to anyone interested in urban development or the growth of the United States and changes in our environment more broadly. It’s not an environmental policy book per se, but is a fascinating exploration of how the City of Chicago developed during the 19th century in concert with – and as a direct result of – the development and exploitation of its natural resource hinterlands. For anyone frustrated by the state of the global climate negotiations, I also recommend Scott Barrett’s Environment and Statecraft, which won’t necessarily make you more hopeful about the future, but does offer helpful insights that explain why these issues are so difficult to resolve and provides some thought-provoking recommendations on the pathways forward.
Friday, June 01, 2012
By Guest Author, By Halley Epstein, Yale Law School ‘14
Halley Epstein attended the recent Conference on Climate Change Justice at the University of Chicago. She’s summarized some of the highlights in the post below.
A deep debate exists among academics and policymakers about what constitutes climate change justice, and the failures of various international climate change summits – each convened to draft climate treaties with teeth – perhaps most acutely reflect the discord among power players, including the U.S., China, and India.
In their 2010 book Climate Change Justice, Eric Posner and David Weisbach argue for a climate treaty requiring nations to limit greenhouse gas emissions without addressing any issues not immediately connected to that task. Justice, whether distributive or corrective, should not guide the negotiations for a climate change treaty because the cooperation of all nations – both rich and poor, industrialized and developing – is required, and each nation holds conflicting views of the role justice should play. Posner and Weisbach’s central assertion is that a climate treaty must instead satisfy International Paretianism – it must make all nations involved better off (but could be satisfied if it makes at least one nation better off and no nation worse off). This, they contend, is a feasibility principle, not an ethical principle.
The recent Conference on Climate Change Justice, sponsored by the Institute for Law and Economics and the Chicago Journal of International Law, gave scholars an opportunity to respond to this idea while offering their own. Many conference discussions dealt with ethical questions of distributive and corrective justice, as well as whether moral and ethical considerations might actually alter nations’ views of their climate obligations.
I left the conference convinced that countries have been blinded by their pursuit of policy victories rather than reductions in greenhouse-gas emissions. Some highlights from the event follow.
Conflating a Climate Treaty with Distributive Justice
Posner and Weisbach assert that a treaty to reduce greenhouse gas emissions on a global scale should not involve the redistribution of wealth from rich to poor countries. Most conference participants seemed to agree that promoting all global goals through a climate treaty alone is unreasonable. University of Chicago Professor Martha Nussbaum cautioned against bracketing off distributive goals from a climate treaty entirely as there are opportunities to discover causal links and “fertile intervention points,” such as increasing the participation of women in matters of governance and promoting environmental policies and goals in countries such as India and Nepal.
As Posner and Weisbach suggest, sustaining ethical claims that a climate change treaty must redistribute wealth or that most abatement measures must occur in rich countries is difficult, but some presenters distinguished between seeking distributive justice through mitigation versus adaptation. University of Oxford Professor Henry Shue said it would be irrational for countries lacking the financial resources to deal with their own adaptation needs to make sacrifices for global climate change mitigation without an agreement from wealthier nations to help them with adaptation. Such an agreement, Shue said, could make up for the fact that poorer nations constrain development to some extent by restraining emissions, and whatever the treaty or agreement nations settle on for reducing emissions, distributive effects – whether from a moral or feasibility standpoint – must be part of the talks.
Posner and Weisbach approach International Paretianism as an empirical principle with the assumption that no nation or state will agree to a treaty that leaves it worse off. But this does not address Shue’s concern about individuals. The poorest individuals lack political capital (as may their governments at the international negotiating table). So a treaty presumably could make a country better off, on the whole, while worsening conditions for its poorest people.
Corrective Justice: Who Pays? Do Historical Emissions Matter?
Posner and Weisbach do not believe historic emissions can or should be included in a climate treaty, but Georgia Institute of Technology Professor Paul Baer argued that the assumption that polluters should be unaccountable for cross-border damages is itself unsupportable. One of his major problems with the authors’ view is that they assume externalization of greenhouse-gas-emissions costs is a legitimate status quo.
Many conference presenters discussed the idea of fairness, which represents another feasibility constraint to forming a treaty that works for developed and developing nations alike. While some developing nations view historical emissions as a necessary calculation in determining nations’ obligations, nations that would shoulder responsibility for historic contributions reject the concept of accountability as justice, at least in this manner.
Lukas Meyer, a professor at the University of Graz, Austria, said compensating countries with cash payments for historical contributions would be difficult to justify, distinguishing that type of distribution from distributive justice – basing the latter on evening out undeserved benefits or harms. Nussbaum pointed out that applying corrective justice turns into the blame game with a lot of jockeying for a less blameful (or blameless) position rather than cooperation for the sake of actually reducing greenhouse-gas emissions. I agree with both speakers, and think their comments reflect feasibility constraints and political realities. Ideally, though, rich and industrialized countries that have contributed to historical emissions and laid the path for the world’s current emissions trajectory should recognize the effect of their actions.
Posner and Weisbach criticize the notion of collective responsibility and point out that many of the people living today in industrialized countries are not actually the ones responsible for climate change (though they acknowledge these people have benefited from the emissions of their predecessors in, say, the U.S.). Past emissions, they say, will be largely moot since developing nations, namely China, India, and Brazil, will catch up to the U.S.
Equal Future Shares
University of Chicago Professor Raymond Pierrehumbert discussed the equal future shares theory, which disregards historical carbon emissions and divides up the remaining carbon commons equally per capita (based on limits). Using this method he calculates the fair share of remaining carbon commons at 70 tonnes per person. What does this mean for Americans and the Chinese, for example? At current rates, North Americans would need to stop emitting carbon in 13 years while the Chinese could continue emitting for 56 years. If historical usage is factored in, North Americans used up their fair share in 1970; the Chinese will use up their fair share in 2040. Hopefully, we will have a climate treaty well before 2040 and countries will collectively have initiated significant steps to reduce emissions by that time.
Equal distribution of emissions allowances in an international system would be arbitrary, said Tel Aviv University Law Professor Yoram Margalioth, and would further assume common ownership. That, Margalioth argued, is an assumption we do not apply to most other goods; for example, countries with valuable mineral deposits are not required to divide profits among other nations. Posner and Weisbach also criticized this assumption: “When governments close commons, they do not . . . distribute shares of it to citizens on a per capita basis.” Climate change affects nations in different ways, so it is unclear how distributing emissions allowances on a per-capita basis would achieve justice if countries that would benefit and countries that would suffer greatly from climate change received the same allowances.
Realism or Pessimism: Some Predictions of the Way Forward for a Climate Treaty
The conference presenters expressed a range of ideas for what the future may hold for an international climate treaty:
-Any international agreements may simply follow what nations are already doing to reduce GHG emissions.
-For an effective international climate treaty that addresses mitigation, the world needs the buy-in of the U.S., China, India, and Brazil.
-The U.S. should have been a first actor, but arguably has already positioned itself to be at best a second actor.
-The “common but differentiated responsibilities” outlined at Rio in 1992 and solidified in Berlin in 1997 simply will no longer work. Harvard Professor Robert Stavins said this “dichotomous distinction” made progress virtually impossible in later international negotiations. At a minimum, Stavins believes the Durban Platform for Enhanced Action breaks with the Berlin Mandate because it is a mandate to adopt by 2015 a new legal framework to include all key countries for implementation in 2020; this opens up negotiations to outside-of-the-box thinking.
-If countries continue to pursue cap-and-trade systems, harmonizing the systems in advance will minimize or avoid political discord about features of such systems, such as whether a safety valve should be included. For example, the EU does not want a safety valve provision while any U.S. system would likely include that “escape hatch,” so reconciling these positions will be necessary to achieve international coordination.
More information about the conference, including a list of participants and links to paper drafts, is available online on the conference website.
 Eric Posner & David Weisbach, Climate Change Justice 136 (2010).
 Posner and Weisbach suggest in their book that first actors could be given preferential claims to surpluses generated by mitigation activities (in the form of harms avoided and so forth) to encourage countries to take early, strong stances when confronted with international issues, avoiding stand-offs.
Friday, May 18, 2012
By Guest Author, Beren Argetsinger, Pace University School of Law ‘13
Meeting clean energy goals, complying with environmental standards, achieving state renewable portfolio standards (RPS), and maintaining grid reliability require enormous resource and capital investment throughout the energy industry. The recent Energy Bar Association (EBA) Spring Seminar and 66th Annual Meeting in Washington DC offered insight into numerous aspects of these important issues, including the effects of shale gas and new EPA regulations on coal-fired electric generating units (EGU), challenges facing the integration of renewable energy resources, and a discussion of recent Federal Energy Regulatory Commission (FERC) orders, including Order 1000. A summary of meeting highlights follows.
Coal Plant Economics
Rapid growth in shale gas production throughout the United States has led to the lowest natural gas prices in over a decade. Futures prices dipped below $2.00 per thousand cubic feet in April 2012 for the first time since September 2001, and the Energy Information Administration projects that low natural gas prices (in the $4- to $6-per-thousand-cubic-feet range) will continue for the foreseeable future. Low natural gas prices combined with increasingly stringent EPA regulations on power plant emissions have important implications for the electric power industry.
Kurt Bilas, Executive Director of Government Relations at the Midwest Independent System Operator (MISO), noted that out of the approximately 70 gigawatts of coal-generation capacity in the MISO service territory, 60 GW will need to retrofit or retire as a result of EPA’s Mercury Air Toxics Standard (MATS) and the Cross-State Air Pollution Rule (CSAPR, which is currently under stay). Out of that 60 GW, approximately 12 GW (representing over 10 percent of MISO’s total generation capacity) would have to retire.
With EPA’s proposed greenhouse gas rule, the economics for coal fired EGUs – both existing and new – are becoming increasingly marginal in competitive wholesale electricity markets. Further complicating the issue, the decision to retrofit or replace these units must account for the possibility that a significant retrofit of a facility could trigger New Source Review (NSR) and compliance with New Source Performance Standards (NSPS) under the Clean Air Act. Many operators are looking for greater stability and certainty for the long term, and natural gas is quickly emerging as the fuel of choice for new electric power generation.
Some regions of the country already rely heavily on natural-gas-fired generation. In 2010 natural gas supplied over 45 percent of the power produced in the ISO-New England service territory, up from just 6 percent in 1990. In other regions, natural gas represents the second largest portion of proposed new generation (second only to proposals for wind). However, switching from coal to gas generation is complicated: new facilities must be constructed and pipeline transportation infrastructure must be in place to deliver the fuel.
In fact, the pipeline infrastructure and nature of the natural gas delivery contracts represent some of the most significant barriers to the transition. In regions such as the Northeast, natural gas is also used as a heating fuel in the winter months. Because gas generators generally take natural gas delivery on an interruptible basis, other customers taking delivery on a firm contract basis – such as the home heating market – take precedent when demand is high and pipeline capacity is full. Expanding pipeline capacity is the logical solution to this problem; however, this takes years of planning, environmental review, siting, permitting, and construction.
Compounding the issue for coal plants is the EPA’s 2015 compliance deadline for MATS (2016, if a state extension is granted). Many operators will choose to retire these old generators rather than upgrading them to meet the new standards. Without adequate replacement capacity in the system, a generation facility could be called upon to run for reliability reasons – putting it out of compliance with the law. The U.S. House of Representatives recently responded to this issue with the passage of H.R. 4273.
H.R. 4273 would amend the Federal Power Act (FPA) to exempt a generator operating under an FPA Section 202(c) emergency order from liability if it were otherwise in violation of federal, state or local environmental laws. While the principles contained in the bill are sound – dispatching a generator for emergency reliability purposes should not subject that generator to liability for non-compliance with the law – it opens the door for generators to subvert environmental policy and extend the date of compliance.
Opponents of the legislation have argued the bill would effectively write a loophole into the FPA that would delay compliance with EPA regulation. Further, the EPA maintains that Section 202(c) orders are rare and the legislation is unnecessary, given the other tools that EPA has at its disposal. While the fate of HR 4273 may be a bellwether for how Congress ultimately responds to EPA regulation in the electric industry, the long-term generation resource portfolio that will replace retiring coal units largely will depend on economic, technological, and infrastructure constraints. Public policy, such as state RPS or EPA regulations like MATS, CSAPR, and the proposed greenhouse gas rule, must be considered in regional transmission planning processes pursuant to FERC Order 1000.
In July 2011 FERC issued Order 1000 in an attempt to address challenges associated with transmission planning and cost-allocation. At the EBA meeting, former FERC Commissioner Suedeen Kelley noted that the promotion of competition in regional transmission planning processes lies at the core of Order 1000. Requiring the incorporation of public policy into the planning process should stimulate a more holistic assessment of transmission needs, costs, and benefits for transmission infrastructure. This is particularly important for the integration of renewables – which has a sort of “chicken and egg” conundrum associated with it. Renewable developers won’t build new wind turbines if there are no transmission lines to deliver the power to load, and transmission developers won’t build new transmission in the hopes that a wind farm will go up and energize the line.
The Midwest has vast wind resource potential that could play an important role in the nation’s energy portfolio over the long term. Texas, Kansas, Montana, Nebraska, South Dakota, North Dakota, and Iowa have over 6,900 GW of combined wind generation potential. With only 46 GW of installed wind power capacity in the United States in 2011, wind has a long way to go to before it represents a significant portion of the nearly 1000 GW of the country’s total installed capacity.
Balancing Short-Term Market Signals with Long-Term Energy Policy
FERC Order 1000 fosters greater competition and inter-ISO/RTO cooperation in transmission planning, requiring the incorporation of public policy goals in the transmission planning process. While this is a step in the right direction, comprehensive Congressional action is critical – but unlikely in the near term. That makes it all the more critical for states and regional entities to coordinate on clean energy goals and cost-effective solutions to meeting environmental standards while maintaining grid reliability.
Greater harmonization of state RPS, even if only among states within the same ISO/RTO service territories, could lead to more cost-effective renewable power integration and ease the transmission planning and cost-allocation process. While increased natural gas development will and must be part of our energy future, short-term market signals must be tempered by long-term energy policy goals, including increased federal attention to transmission and renewable energy development.
Beren Argetsinger is a joint-degree student at the Yale School of Forestry & Environmental Studies, where he is pursuing a MEM with a concentration in energy systems and policy, and Pace Law School.