logo: Yale Center for Environmental Law & Policy

YCELP News Feed

Section Image

On the Environment

Thursday, May 29, 2014
| Share

Acclaimed Author Tom Kizzia Closes YCELP Series with Papa Pilgrim and the Divine Land Battles

By Guest Author, Verner Wilson III, Yale F&ES '15

On April 23, during National Park week and just after Earth Day, Tom Kizzia, author of the acclaimed Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier, concluded the Yale Center for Environmental Law & Policy’s 2014 Climate and Energy Bookshelf series sponsored by the Yale Climate and Energy Institute. Kizzia’s lecture, delivered to a crowd of more than 80 people, was titled “Frontier Gothic: Transcendentalists, Puritans, and Pilgrims in Alaska” and explored, in part, the implications of the biggest conservation act in world history.

In 1980, the U.S. Congress passed the Alaska National Interests Lands Conservation Act, or ANILCA, creating over 100 million acres of national parks, preserves, forests and wildlife refuges within the state, transferring ownership of about 60 percent of all lands in the state to the federal government, and setting up a fierce debate between state residents and federal bureaucrats on land ownership and authority.  One of the protected areas established was the Wrangell St. Elias National Park, an area about as large as Switzerland with one glacier alone the size of Connecticut and Rhode Island combined.   

The only town in the park is the village of McCarthy, a former mining settlement that had seen a boom and then bust copper operation in the 1930s. In early 2002, Robert Hale, who called himself Papa Pilgrim, purchased hundreds of acres near an old mine site outside of McCarthy and moved his wife and 15 children there to be away from what he considered a corrupted civilization. In the wilderness he was able to raise his children in his own, unique, religious faith and without the influences of the outside world.

To build up his property, Hale expanded and improved an old mining road. The environmentally destructive improvement lead to conflict with the National Park Service (NPS) – with its mission to preserve the park from development – and highlighted the tensions between private landholders within the park and the NPS

Enter Tom Kizzia, a respected Alaska journalist. Kizzia and his wife owned a cabin near McCarthy. Kizzia asked Hale if he could interview the “Pilgrim” family about the conflict and, in a rare move, Papa Pilgrim agreed after learning that Kizzia was a neighbor.  Soon “Neighbor Tom” spent long periods with the family, something he described as living in another world. Without revealing too much of how the story ends, eventually the sordid details of Papa Pilgrim’s ideal biblical living were exposed.

The story of the Pilgrims, who fought federal officials in order to build access to their property in the park, is one of many intriguing land conflicts within the United States, and especially in my home state of Alaska. I am from the Bristol Bay region, an area with two large national parks, a national wildlife refuge and the nation’s largest state park, and I know firsthand how questions of ownership and authority over lands in Alaska are still hotly contested, decades after ANILCA set off a firestorm between local Alaskans and decisionmakers in Washington, D.C.

One example is the proposed Pebble Mine, a copper and gold mine on state land located in an area between two national parks, Lake Clark and Katmai. The state of Alaska and the mining company, Northern Dynasty Minerals, contends that the Pebble deposit is in an area open for mineral exploration and development. They argue it would be worth $300-$500 billion given today’s mineral prices, provide thousands of jobs, and much revenue to the state. The federal government claims that the U.S. Environmental Protection Agency has the final authority on whether the mining activities can go forward. The EPA argues that because the mine will affect waters of the United States, the EPA has final authority through the 1972 Clean Water Act.  The Act allows the EPA to veto or restrict development activities that can impact drinking water, recreational, fishery or wildlife areas.  Through a final EPA study released earlier this year, EPA found the Bristol Bay region produces nearly half of the world’s wild sockeye salmon—salmon on which my family depends for our livelihood. EPA subsequently started a process to veto the development of the Pebble Mine. Religious leaders have also come out against the proposed mine because they fear it will pollute God’s creation in the region.

The use of religion for preservation is an interesting argument in both the cases of the proposed Pebble Mine and the Pilgrim family.  Yale Divinity School’s 2009 conference discussed this very issue.  It brings us back to the lessons learned from Tom Kizzia’s book and lecture at Yale, that religion can be used in cases of both development and preservation. Through the intriguing story of the Pilgrims, undeveloped wilderness was the reason that they purchased the land and subsequently why they fired off a thunderstorm of land conflicts when they tried to develop part of it.

 

Verner Wilson, III, is a rising second-year Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. He is originally from Bristol Bay, Alaska, and obtained a bachelor’s degree in Environmental Studies in 2008 from Brown University. He previously worked for the World Wildlife Fund, as well as a coalition of Alaska Native tribes, on issues related to sustainable wild salmon fisheries, environmental justice, mining, oil and gas, and climate change.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, May 28, 2014
| Share

Update: The Yale-Pace Local Governance of Shale Oil and Gas Development Project

By Guest Author, Christopher Halfnight, Yale F&ES '15

Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities.  Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.

Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level.  As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts.  The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development.  With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.

As part of this ongoing effort, the Yale and Pace team recently convened a facilitated discussion at Yale Law School with diverse stakeholders from industry, advocacy, government, and academia.  Titled “Closing the Shale Gas Governance Gap,” the session in late March focused on local strategies and best practices for governing unconventional oil and gas development.  The team’s research is turning up novel and notable examples of local regulation of fracking – overlay zones, parcel size restrictions, insurance requirements, and noise limits, to name just a few.  We sought to enhance and expand our efforts through collaborative discussion with a group of experts from the field.

Professor Hannah Wiseman from Florida State University College of Law opened the discussion with an overview of current federal and state regulatory efforts, highlighting potential impacts and governance gaps at the local level.  Participants then heard from three distinguished speakers with firsthand knowledge of local government attempts to address the impacts of fracking.

John Smith, Solicitor for Cecil Township in Pennsylvania and attorney for the municipalities in the recent Pennsylvania Supreme Court case Robinson Township v. Commonwealth, spoke of a wide range of local challenges in the communities he represents, from water use to road traffic, and silica dust to seismic testing.  Attorney Smith also discussed unique strategies in Cecil Township, including local ordinances requiring sound walls around drill sites and advance notice of drilling.

Similarly, Terrence Welch, Partner at Brown & Hofmeister LLP, in Richardson, Texas, offered valuable perspective on crafting the Dallas local ordinance governing oil and gas development in an urban and suburban setting in the Barnett Shale region of north Texas.  Public attention in the nearby suburb of Flower Mound focused heavily on the issue of setbacks, and local government experience there highlighted the importance of property value studies to justify those setbacks, as well as the need to anticipate variance claims, the threat of takings lawsuits, and issues unique to parkland.

Lastly, Stephen Ross, formerly the County Attorney for Santa Fe County, New Mexico, discussed Santa Fe’s recent gas development ordinance, providing unique insight into the county’s efforts to facilitate public participation, initiate a temporary moratorium, draft general plan amendments, and build a collaborative interaction with state government.

Through these presentations and the discussion that followed – moderated by Professor John Nolon from Pace Law School – two clear lessons emerged: local governments have the legal capacity to address many impacts of hydraulic fracturing and they exhibit a wide variety of approaches and strategies.  The team is using these lessons to bolster and guide future efforts.  With the right tools, local governments can play a large role in filling the shale governance gap; leading practices and robust training will help prepare municipal leaders as they grapple with the challenges and opportunities of a shale oil and gas play.

The March workshop represented a key step forward in the project team’s ongoing efforts to help local governments address the impacts of hydraulic fracturing.  The discussion built on our December 2013 expert panel and workshop at Pace Land Use Law Center’s Annual Conference which aimed to test the governance-gap hypothesis: that federal and state regulatory schemes are failing to address a range of local impacts from hydraulic fracturing.

At that workshop, a diverse group of stakeholders collaborated to identify and discuss potential impactsand concerns at the local level, ranging from the positive effects of increased economic activity, to risks of water contamination, air pollution, and pressure on local roads and services.  The impacts of unconventional oil and gas development vary according to local factors.  But the group at the December session emerged with a strong a consensus that federal and state regulatory measures are often inadequately addressing those impacts – a consensus that helped transition the project toward identifying local strategies and best practices.

The Yale and Pace team is excited to continue building on our collaboration with expert participants from these two workshops.  As we refine our research on leading practices for local governments, the project team is shifting toward fashioning a comprehensive suite of tools and a robust training program to equip local leaders with the knowledge and capacity to deal confidently with hydraulic fracturing.  With multiple-stakeholder input, we aim to empower local communities to chart an informed and responsible path through the potential benefits and risks of fracking.

We expect to develop a variety of tools and programs in the coming months.  Expanding on our research and outreach to date, the team is creating a thorough guide to potential impacts and issues that local governments may face and may wish to address – including rising local government revenues from sources such as sales taxes, property taxes, or state-collected severance taxes, booming real estate markets, new bunk-housing, well fires, pipeline breakage, seismic testing, and flaring noise.  This substantive framework and checklist will help orient communities to the various benefits and risks of fracking, including potential environmental, health, and socio-economic impacts that municipal leaders will need to evaluate.  Grounded in research and case studies such as those discussed in the March workshop, this issues framework will also provide a substantive foundation municipalities can use to justify potential regulatory and non-regulatory actions.  With a solid knowledge base tailored to local conditions, municipal leaders will be better positioned to effectively manage gas development and to engage industry and state regulators in productive dialogue.

We also intend to continue building on the March workshop to complement the issues framework with detailed strategic options and alternatives for local governments tailored to each of the potential impacts.  We anticipate including leading practices for both regulatory and non-regulatory strategies, drawing from our previous facilitated discussions and further research and collaboration.  The procedural options framework may include model planning and zoning documents, such as comprehensive development plan amendments to address unconventional oil and gas development, special use permits, and draft ordinances focusing on setbacks, use restrictions, overlay strategies, insurance requirements, noise limits, and other aspects within the purview of local government.  As a counterpart to regulatory options, the framework will also include non-regulatory strategies and templates, such as policy statements, funding strategies, model road use agreements, community benefit agreements, processes for seeking better support from state regulators, and other means of securing local advantages from shale gas development while safeguarding against potential negative effects.  These non-regulatory strategies can help communities work collaboratively with industry to ensure baseline testing, high performance standards, post-development bonding, and other local needs.

Ultimately, the team intends to communicate the entire package as part of a robust training program for municipal leaders – first as a pilot project and eventually at large.  We also expect to develop new mechanisms – potentially online – to distribute project materials and to facilitate communication between municipalities, particularly in regional frameworks to address cumulative impacts of gas development.  In so doing, we hope to promote dialogue between communities and industry, and between municipal and state authorities.

Our work to date – and the generous support of experts and sponsors – has positioned the Yale and Pace team to move forward with the next phase of addressing the local impacts of hydraulic fracturing, and is already receiving positive media attention. For better or worse, the shale boom continues.  Unconventional oil and gas development brings the prospect of significant economic gain for often-frail local economies, and the specter of long-lasting environmental harm and community detriment.  With the proper tools and knowledge base, municipal leaders will be better equipped to navigate an effective path between those two poles, mitigating potential negative impacts, while securing net economic and social community benefits.

Posted in: Environmental Law & GovernanceEnergy & Climate
Tuesday, May 27, 2014
| Share

On the Ethics of Climate Engineering

By Josh Galperin, Associate Director

The following post comes curtesy of Gabe Levine YC '14. Gabe graduated from Yale College last week, an important accomplishment in itself. However, Gabe also received the Wrexham/Heinz Prize for the best senior essay in the social sciences. In the post below Gabe summarizes his essay titled "'Has It Really Come to This?": An Assessment of Virtue Ethical Approaches to Climate Engineering." 

~~~

It has become common to frame conversations about climate engineering by asking two questions: 1) Do you think the risks of climate change pose a deep, serious problem to civilization?, and 2) Do you think that abandoning fossil fuels is an extremely difficult task? These were the questions that Oliver Morton, a science writer for The Economist, asked about 150 people at an MIT lecture hall in 2013. The occasion? A panel discussion entitled, “Debating the Future of Solar Geoengineering.” 
 
For some of those inclined to answer “yes” to both of Morton’s questions, solar geoengineering—lowering global average temperatures by reducing the amount of energy absorbed by the atmosphere from the sun—might be an appealing prospect. In principle, it offers a way of avoiding the worst effects of climate change at a fraction of the cost of mitigation, and much more quickly. But even proponents of solar geoengineering (or, as I refer to it, climate engineering) know that nothing would really be so simple: it could have vast, unintended consequences for global precipitation patterns; we might find it impossible to govern; it might commit us to a future in which humanity is perpetually on the verge of climate catastrophe, where governments continually need to disperse ever more radiation-reflecting chemicals into the stratosphere. In short, engineering the climate might be a really bad idea.
 
But even if it were, in some sense, a good idea, even if scientists and governments could figure out a way of engineering the climate that were safe, reliable, and easy to govern, some moral philosophers think we should still have deep reservations about doing it. These philosophers, including Stephen Gardiner, who served on the MIT panel, think that climate engineering would express inappropriate moral attitudes. In my essay, I assess Gardiner’s argument, and others like his. I argue that Gardiner’s description of climate engineering as a “tarnishing evil,” which would be a “reckless, callous, and shallow” response to one of humanity’s most fundamental challenges, is misguided. Gardiner does not provide good reason for us to be especially wary of climate engineering, beyond our usual concerns about costs and governance. 
 
I then survey three further critical approaches to climate engineering that, like Gardiner’s, focus on the attitudes that climate engineering would express. Only one of these, raised by Holly Jean Buck, Andrea R. Gammon, and Christopher J. Preston, persuasively describes an important concern that cannot be easily expressed in terms our “usual concerns.”  To engineer the climate, they argue, is to treat climate change as a technical, rather than a social problem, in which the concerns of those most affected are treated only in general terms. This, Buck, et al. argue, would reinforce global structures of oppression. 
 
Buck, et al.’s argument, however, requires empirical substantiation. Moreover, even if it were correct, I argue, their argument would not defeat many sophisticated arguments for climate engineering. It would only raise important concerns regarding just how to go about engineering the climate. None of the arguments I examine, then, is both persuasive and strong enough to stop us from seriously considering engineering the climate. I argue that this is because of the complex distribution of responsibility for any attempt to engineer the climate. It is difficult to claim that any one actor, or set of actors, would express bad enough attitudes by engineering the climate that other considerations—such as the difficulty of abandoning fossil fuels—should be morally irrelevant. I therefore conclude that, though very serious concerns about climate engineering may remain, it is probably morally permissible to research it, provided that the research is undertaken responsibly.  
Posted in:

Page 1 of 1 pages

Blog Home



2007-2010 Yale Center for Environmental Law & Policy | Contact Us | Website by Asirastudio LLC