Wednesday, October 31, 2012
By Josh Galperin
Cost benefit analysis (CBA) is a much touted and much debated tool for environmental policymaking. At its foundation, the premise is simple; CBA uses analytical formulas to determine whether the monetized benefits of a proposed regulation outweigh the monetized costs. Where the benefits outweigh the costs, the policy proposal should become a reality. It is the seeming objectivity of CBA that makes it attractive to its proponents.
One such proponent is Professor Ben Trachtenberg of the University of Missouri School of Law. In an article forthcoming in the November/December issue of the Environmental Law Institute's Environmental Forum, Professor Trachtenberg argues that CBA has flaws, but that they are superficial flaws, which can be addressed through tweaks to the process. Specifically, Professor Trachtenberg looks to the way that the value of future human lives are discounted when conducting a CBA. Discounting is based on the economic understanding that people value money more today than in the future. For instance, if I offered $100 in 1 year, or $94 today, most people would accept a smaller sum today. Thus, if an environmental regulation will save a human life not today, but in the future, we need to calculate the value of that life and then discount it to its present value.
Professor Trachtenberg's article argues that CBA would more accurately reflect the costs and benefits of environmental policy if the discount rate were lower, that is, if the value of future lives were reduced less when converted to present value. To support this argument Professor Trachtenberg point to two items: increasing healthcare costs and increasing gross domestic product. As people are willing to pay more to avoid death and as future generations become richer, their theoretical lives become more valuable. Where future lives are more valuable, they should be discounted at a lower rate.
Professor Trachtenberg's assessment is accurate. However, Professor Kysar and I co-authored a brief response, forthcoming in the same issue of the Environmental Forum in which we argue that efforts to mend rather than end CBA in environmental policymaking will not ultimately result in better environmental governance. Efforts such as Professor Trachtenberg's are arguments for changing CBA, but more importantly they are demonstrations of how fragile CBA is.
While CBA is proffered as an objective tool, the tweaks that Professor Trachtenberg identifies are just two among many potential changes, all of which can be subjectively used and abused to change the outcome of a given analysis. CBA, therefore, creates a veil of objectivity over yet another subjective process. This sort of marginal effort will work to marginally improve policy, but it will also work to solidify the role of CBA, for better or worse. In other words, those who strive to give future generations more consideration in environmental rulemaking should take care not to relinquish alternative tools, which rest on more principled grounds, in exchange for temporary relief from the limited capabilities of CBA.
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.
Friday, October 12, 2012
By Josh Galperin
The Yale Center for Environmental Law and Policy congratulates the 2012 Switzer Fellows, two of whom are associated with the Center: Angel Hsu and Stephanie Safdi.
The Switzer Environmental Fellowship is a program of the Robert and Patricia Switzer foundation. According to the Foundation the Fellowship “recognizes the achievements of environmental leaders and their potential to drive positive change.” In total the Foundation awarded 20 fellowships this year, meaning that students associated the Yale Center for Environmental Law and Policy account for 20 percent of the entire Switzer Fellow population.
Angel Hsu is a doctoral candidate at the Yale School of Forestry and Environmental Studies as well as the Program Manager of the Environmental Performance Measurement program at the Center. The Fellowship recognizes Angel’s efforts to create environmental solutions through objective environmental performance measurement and the use of quantitative data and scientific approaches to guide environmental policymaking.
Stephanie Safdi is a joint student between Yale Law School and the School of Forestry and Environmental Studies. She is the founder of the New Directions in Environmental Law conference hosted at Yale Law School each year and sponsored by the Yale Environmental Law Association and the Center for Environmental Law and Policy. Stephanie earned the 2012 Fellowship for her work to advance environmental justice, connecting environmental, health, and human rights law both domestically and internationally.
Leah Butler, Jennifer Gaddis and Molly Greene, all graduate students at the Forestry School, and Reed Schuler from Yale Law School were also awarded Switzer Fellowships this year.
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
In our cities the byproducts of combustion (in our engines and power plants) meet with the byproducts of life - plant resin off-gases, air-born dusts and sands, ocean sprays and sea salt mists - to create a complex mixture of chemicals that can be harmful to human health. As Gabriel Isaacman and I reported in the Atlantic last month, even so-called pristine landscapes are not free from this effect.
And that begs the question: what are we to make of natural sources of air pollutants? This was a question posed during the first day of the International Workshop for a Better EPI: Towards a Next Generation of Air Quality Monitoring, held last week at Seoul National University in Korea.
Small diameter particulate matter, so-called PM 10 (less than 10 microns in diameter) and PM 2.5 (less than 2.5 microns), are air pollutants of particular concern. These particles, which can be anything small, from grains of desert dust to particles of coal ash, are small enough to bypass the lung’s natural filters (hairs in your nose, mucus in your throat). They burrow deep into the vulnerable tissues of the lung, where whatever radioactive particles or heavy metals they brought with them can wreck havoc on easily damaged soft tissue.
All particulate matter, generally, is harmful to human health. At least according to Michael Krzyanowski of the World Health Organization, who presented on global PM monitoring efforts at the conference.
“Epidemiological studies have tried to separate the specific effects of the different components of PM,” he said, referring to efforts to clarify human health outcomes related to PM derived from cars from those related to PM derived from plants. “Either we aren’t there with research,” he said, “Or PM is just too complicated to separate.”
Because we can control the PM that is human-produced, either by limiting power plant emissions or driving fewer car miles, some participants at the conference argued that we should only consider these sources of PM in national inventories and performance metrics. Countries cannot, generally, limit the PM produced by an ocean breeze or a desert storm - they should not be penalized, or criticized, the argument goes, for having high PM levels from these sources.
These are fair criticisms. PM levels are currently a leading indicator in our Environmental Performance Index, which ranks the countries of the world on measures of environmental quality. And it is also a pollutant required for control under most rigorous air pollution programs around the world.
But there is evidence that natural PM sources are as harmful to human health as non-natural. In other words, “we don’t have evidence that non-anthropogenic PM is not-health relevant,” Krzyanowski said. As such, it is problematic to simply remove this source from environmental metrics.
“Health warnings should include Sahara dust in an index,” Krzyanowski argued, just as much as dust from construction or car emissions. “Yes that is hard to address in management. But it is still important for human health.”
There is no easy answer to this question – what pollutant sources to include in measurements and indices – but later versions of our own EPI may well seek to differentiate among these measures to create a more sophisticated measure of country-by-country managements obligations and public health risks.
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.
Wednesday, October 10, 2012
By Josh Galperin
Most have likely seen the green and white bumpersticker declaring “No Farms No Food”. Without reservation I support the message of American Farmland Trust, the group that created and distributes this sticker. In the words of American Farmland Trust:
“The message is simple and couldn't be more clear—America's farms and ranches provide an unparalleled abundance of fresh, healthy and local food, but they are rapidly disappearing.
Ninety-one percent of America’s fruit and seventy-eight percent of our vegetables are grown near metro regions, where they are in the path of development. And America has been losing more than an acre of farmland every minute. That's why supporting local food and farms is more important than ever!”
Recently, however, I was walking to work when I passed a truck that donned the green and white sticker as well as the familiar red and black bumper sticker showing support for the National Rifle Association. Seeing these two stickers side by side, it occurred to me that the message “no farms no food” simply isn’t true. Take a quick trip to NRA.org and you will see that hunting is a pillar of their mission.
There is, in fact, food without farms and it comes from, among other places, hunting wild animals, or harvesting wild plants.
Research suggests that human agriculture arose around nine thousand years ago. For the sake of argument, let’s round that to ten or even 20 thousand years ago. Homo sapiens have been on earth for somewhere around 200,000 years. That means that for over 180,000 years there were no farms, but there was food.
It would take too long to list all the incredible benefits of agriculture; suffice it to say that agriculture is more than just a critical part of human life today. The American Farmland Trust and likeminded organizations similarly play a critical role in reminding us that our food does come from somewhere— typically a farm—and awareness about the origins of our food is important to protecting the source. By and large that source is farms, but it is worth remembering that there is more to our food system than farms alone. To sustain our broader environment and our complete food system we need to remember the boar, bass and berries that can also nourish us.
Monday, October 08, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
This spring the US Department of Transportation has, with the stroke of a pen, changed longstanding federal policy. In the past, retired Naval vessels potentially contaminated with dangerous toxins had been made available for the creation of artificial fish reefs. Now vessels built before 1985 – those potentially contaminated with polychlorinated biphenols (PBCs) - will no longer be considered for use in artificial reefs. This is a victory for human health and the health of our oceans.
This policy change resulted from, among other actions, research undertaken by graduate students in the Environmental Protection Clinic at the Yale Law School and Yale School of Forestry & Environmental Studies, who worked with the Natural Resources Defense Council to oppose efforts to sink a particularly troubling former Naval vessel, the ex-USS Kawishiwi, off the coast of California.
The USS Kawishiwi was a uniquely American vessel: named for a Minnesota river, built in a New Jersey shipyard, and commissioned in a Philadelphia Naval base, this seven million gallon oil carrier served the 7th Fleet in the Pacific for more than 30 years of the Cold War. In 1979 it retired from active US duty. In 1992 it entered the Suisun Bay Reserve Fleet (one of three federal storage sites for America’s mothballing “national defense reserve” ships). And in 2011 it became available for artificial reefing. In ancient Japan, stones were rolled into the ocean to provide substrate for reefs and new homes for reef fish. Now we sink ships.
In addition to the hydrocarbon residues of a half-century of marine diesel fuel to be found in its tanks, the ex-USS Kawishiwi likely contains heavy metals (mercury, lead, barium, and cadmium) in its guidance systems, light switches, radar displays, and hull paints. Hydrocarbons and heavy metals are, respectively, carcinogens and neurotoxins. Polychlorinated Biphenols (PCBs) – carcinogenic, mutagenic, and teratogenic bioaccumulators (meaning they are passed upward in food chains) - will be found in the ship’s boiler rooms, radio rooms, engine rooms, and weapons rooms, as well as in its adhesive tapes, switchboards, insulators, capacitors, and transformers. Anything made of plastic in the ship will likely contain PCBs.
If it had been sunk in California state waters this year, as planned, the former USS Kawishiwi would have been the 9th such ship intentionally sunk off California, and the 5th sunk to create a reef, in the last 30 years. Though it is unclear what effect this new reef would have had on fish communities, or the dive enthusiasts who supported its creation, it is clear that any contaminants that would have survived a ship cleaning (there would have been many) would have sloughed from the ship, leeched into the ocean, and settled comfortably in the fatty tissues of marine organisms throughout the nearby water column. Eventually these contaminants would have made their way back onshore, to accumulate in the bodies of the terrestrial mammals that first commissioned them to the sea.
Through a letter of complaint based on our research, sent to the Department of Transportation’s Maritime Administrator, the Natural Resources Defense Council officially opposed the planned sinking. Through a Freedom of Information Act request we have now learned that not only will the USS Kawishiwi no longer be considered “available for reefing” but federal policy has also officially changed - all ships owned by the Department of Transportation (there are more than 40 left in reserve) cannot be considered for reefing if they were built before 1985 (the year at which PCBs are no longer likely to be ubiquitous onboard) and will, generally, be locked into recycling plans if recycling is possible. This is a policy change guaranteed to better protect human health and the health of our oceans. And these ships are now, incidentally, more likely to create jobs (through recycling) and save taxpayers money (reefing is expensive).
Miles to go
Though old, toxic naval vessels will no longer be available for use in artificial reefs, our government is still sinking decommissioned vessels at an alarming rate. The Navy training program SINKEX, or “sinking exercise,” uses former vessels for target practice and ordinance tests. Over the last fifty years dozens of potentially contaminated vessels have been sunk in US waters under the SINKEX program. Last summer the Navy sunk three off the coast of Hawaii. This fall holds plans for another sinking.
Though these ships are often cleaned to the best EPA guidelines, full removal of dangerous toxics is impossibly difficult. The toxins that went down with a recently sunk ship, the ex-USS Oriskany, have now been found in the tissue of fish surrounding the wreck.
Is the SINKEX program worth the risks it poses to human health? Are there better ends for these ships (including recycling, which creates jobs and drives economic activity)? These are the questions at the heart of an open lawsuit against the EPA, filed by Earthjustice on behalf of a coalition of environmental groups late last year, which demands that the agency better regulate potentially harmful ship sinks.
With high uncertainty surrounding the safety of these sunken vessels, now might be time for more debate and fewer reefs. The Department of Transportation’s policy change was movement in the right direction, but we still have miles to go.
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).