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Tuesday, February 17, 2015
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Cataloguing Impacts of the Shale Boom: A Foundation for Local Governance

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

The shale boom has stirred deep controversy across the United States.  With vast domestic deposits of natural gas and tight oil now both geologically and economically accessible, many stakeholders, from developers to landowners, are seeking to gain.  But others are sounding alarms over contaminated wells, methane flares, and toxic spills.  Federal and state authorities, with slow regulatory responses and minimal stake in local impacts, are often leaving local governments to navigate this controversy – and the many impacts of “fracking” – with constrained budgets and limited capacity.

With support from the Oscar M. Ruebhausen Fund at Yale Law School, Yale Climate & Energy Institute, and the Yale School of Forestry and Environmental Studies, a research team at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School is working to fill this governance gap through a project titled Addressing the Local Impacts of Hydraulic Fracturing.  The team is building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges.  The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development.  The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development.  The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.

In the impacts framework, the research team has synthesized nearly 40 local impacts of unconventional oil and gas development across the environmental, socio-economic, and public health spectrum.  The team started with a spreadsheet of municipal fracking bans generously shared by Food & Water Watch, then scoured fracking-related local government resolutions across the country to assess the issues dominating communities’ concerns.  Building on this community-level survey, the team convened two stakeholder workshops and conducted significant research to identify and categorize key potential impacts.  Ranging from habitat fragmentation to visual blight and rising tax revenues to increased employment, the framework addresses both positive and negative impacts communities may face throughout the fracking development lifecycle.  The catalogue of impacts is inclusive but neither exhaustive nor predictive; it captures the range of challenges a community may face from a shale play depending on local context, including issues of concern to the scientific community, environmental advocates, industry, and local community members. Importantly, some of the identified impacts are quite likely to occur, while others are equally unlikely. The researchers are not making judgments about the probability or severity of these impacts. We are simply identifying issues that may arise in any given community in order to help prepare local decision-makers. 

For each impact in the framework, the research team has identified potential causes and resources linked to those causes that explain, document, contextualize, or substantiate the impact.  Wherever possible, the team has sought to provide links to authoritative, peer-reviewed journal articles with objective perspective on an impact and its cause.  Where peer-reviewed resources were not available, the framework provides either non-peer reviewed reports and studies or news reports with useful coverage of the impact.  With more than 150 resources and links that document and contextualize the potential local impacts, the framework represents a significant effort towards equipping local governments with a foundation to manage shale development. 

The impacts framework makes clear that the local effects of the shale boom are many and varied.  Most of the impacts the research team has noted span the entire geography of shale development – from Texas to Pennsylvania to North Dakota – though individual community experiences vary with unique environmental, economic, and other characteristics.  Some potential impacts, such as groundwater pollution from stray gas or fracking chemicals, are subject to scientific study and documented in peer-reviewed literature.  Other impacts, such as an increase in demand for local government services and a reduction in local government workforce retention, are not as well documented but still very real worries for local communities. 

The Yale/Pace shale development impacts framework represents a substantial step in the team’s efforts to empower local government decision-making.  This significant new resource will help local government leaders identify potential risks and economic benefits of fracking specific to their communities.  The framework will also provide the underpinnings for local action based on local priorities, while fostering productive engagement with industry and state regulators.

A static version of this impact list is available online now. In the coming weeks and months the Yale/Pace team will work to update this list with a robust menu of regulatory and non-regulatory governance options that local authorities might consider if any of these impacts raise concerns within their jurisdiction. The team is likewise developing more narrative explanations of the cause of each impact, which will allow local governments to tie their responses more effectively to the underlying problems. Finally, the team will soon release an updated version of this impact list in a dynamic, searchable, online interface.

Building on this initial resource, the team is engaging stakeholders from government, industry, and communities across the country to identify strategic options and alternatives for local governments to address each of the many potential impacts of unconventional oil and gas development.  The research team is creating a series of case studies illustrating local government capacity and identifying leading practices – from comprehensive plan amendments to road use agreements to noise restrictions – that will provide guidance to communities facing shale development.  Eventually, the team hopes to bundle these resources in a comprehensive training program for municipal leaders.  

Despite the recent turbulence in international oil markets, local governments across the country are struggling to keep pace with the shale boom.  Some communities are enacting bans that may be preempted by state governments, while others are welcoming development with inadequate safeguards.  The Yale/Pace research team is striving to find ground between the two, building tools for sound, balanced, and effective local law and policy that will empower the communities where many of the impacts of shale development are felt.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, February 12, 2015
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Land Tenure and Sustainable Agriculture

By Guest Author, Elias Kohn, F&ES '16

As I described on this blog two weeks agoAgroforestry offers numerous social and environmental benefits. Unfortunately, broad implementation faces restrictions, such as the challenges of secure land tenure (as described in last weeks posting). Three current strategies to conquer this problem include constructing clearer legal definitions of agroforestry, honoring multiple land ownership models, and refocusing project funding, especially international climate mitigation financing.           

Agroforestry blurs elements of forestry and agriculture, sometimes landing in a gray zone in between. This can make agroforestry practices difficult to recognize and define. Without clear definitions, promoting land tenure policies or tax exemptions for agroforestry practitioners is also a challenge. This is motivating community groups and government agencies to establish clearer definitions. The USDA, for example, recently put a working definition of agroforestry into official guidance. As different agencies within the US develop programs, the USDA guidance can become a reference point that provides a framework for future legal development and eventual incentives and protection for agroforestry project development.

This is a stepping stone for additional policy improvements and “another piece of the policy puzzle coming together to support agroforestry” says Kate MacFarland of the USDA Agroforestry Center.

A second approach to land tenure challenges involves pooling land under a public domain and then granting community access that is secure for the long term. One example is how local agencies in Indonesia encourage community forestry, such as the Hutan Desa, “village forest,” that is regulated through customary law. In this model, water from the forest is shared, the core area of the forest cannot be harvested, and the village cooperatively protects the forest to enhance communal flood resiliency. The secured land, protected through policies and customary enforcement, provides the land tenure security that appears helpful for agroforestry practices.

Long-term land access, even without legal ownership, can combat land tenure obstacles. In 2006, Peru enacted Law 28852, which holds the potential to grant concessions for  “reforestation and agroforestry” for up to 60 years. Such a long time scale solves many of the concerns that food producers have expressed (see the previous post in this series for some interviews with producers). Law 28852 has been met with high controversy, however, due to possible unintended consequences. A key aspect of the controversy relates back to the need for functional definitions; specifically, there is not a clear enough definition of what constitutes a forest. The problems are multifaceted, just as these solutions are complex and interconnected.

A third approach to improve land tenure is to refocus funding. REDD+ (Reducing Emissions from Deforestation and Forest Degradation) is a United Nations financial incentive program to reduce carbon emissions from forests in developing countries. Some REDD+ projects are controversial in Peru, for example, where critics accuse them of threatening indigenous peoples’ use of landand potentially undermining climate change mitigation. A refocused approach would cut out plantations, biofuels, or other large-scale agriculture projects within REDD+, and shift investment towards projects that establish local land tenure rights that fit within REDD+ goals. If the hypothesis that secure land tenure can promote agroforestry and climate smart land management is correct, then incentives that promote local land tenure could be a primary focus of redirected funds. Those projects might then naturally migrate towards long-term land management strategies such as agroforestry.

Agroforestry offers multiple benefits ranging from the social, economic, and the purely environmental. Similarly, by addressing policy restrictions such as land tenure, and by addressing land tenure in a manner that promotes community level decision-making and control, that course of action creates benefits outside of the actual agroforestry implementation.

A continual thought over the last few weeks, reoccurring when I crossed the Benjamin Franklin bridge in Philadelphia, or saw Manhattan’s skyscrapers from Coney Island, is the profound skill humans have to design and build. Now, it seems imperative to employ these skills to design ecological systems that also provide human needs. To make these systems accessible and maneuverable, like elevators rising effortlessly in the tallest of those skyscrapers, the policy tools and local governance structures require similar design skills and implementation. This task is especially suited for the individuals that inform legal and policy decisions.

Posted in: Innovation & EnvironmentEnvironmental Law & Governance
Wednesday, February 11, 2015
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A Pre-Paris Climate Timeline

By Guest Author, Joanna Dafoe, Yale F&ES '14, Yale Law School '17

This morning Christiana Figueres briefed civil society on how to successfully approach the Paris climate conference (COP 21).

Instead of listing all of the plans within the UNFCCC to prepare for Paris—of which there are many— she reminded civil society of the need for dynamic action across all sectors and UN bodies.

The momentum generated by parallel processes, such as the Sustainable Development Goals, is necessary for a successful outcome in Paris.

To this end, I have put together a timeline of select events taking place in the lead-up to Paris. The purpose of this timeline is to illustrate the dynamic political opportunity we have to raise ambition at COP 21.

These events are compiled from the calendars maintained by the International Institute for Sustainable Development Reporting Servicesand RTCC.


This post initially appeared on http://adoptanegotiator.org/

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Thursday, February 05, 2015
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How Land Tenure Standards Prevent Better Agriculture

By Guest Author, Elias Kohn, F&ES '16

If agroforestry provides so many potential environmental and social benefits, why isn’t it more common?

Conversations with agroforestry researchers and growers seem to suggest that lacking long term access to the land, what we can refer to as secure land tenure, prevents greater implementation.

Roughly 40 percent of farmland in the US is rented or leased and “it is a lot harder to implement agroforestry practices if you are leasing the land,”Kate MacFarland of the USDA National Agroforestry Center told me. Without an amendable landlord, farming with trees and perennials is a challenge. It is therefore important to understand how renting land can impact land management decisions, and whether there are any best practices for establishing successful agroforestry practices on rented land.                       

Photo: E. KohnMy own experience renting a residential unit in South Los Angeles and attempting to install a small agroforestry design helps illustrate these challenges. With two freeways visible from the driveway and neighboring a gas station, I was excited to see my coffeeberry bushelderberries, yuccas and a white oak seedling add some color to the nearly constant backdrop of concrete and asphalt. Greywater from my sinks and showers irrigated all the plants that were growing great. When I added worm composting and a small aquaponics system (pictured at left) with tilapia and minnows, my attachment to the whole system grew even more

One day I hurried home to check on everything, only to find that the landlord’s landscapers had ripped apart my work. Verbal permission from the landlord to grow a garden did not matter. Once the disappointment wore off, I was fascinated that the landscapers left all the small annual crops, but killed every native and perennial tree and shrub, the ones that provide greater environmental services and form the foundation of more resilient and longer term agriculture systems.

Was it a coincidence? Maybe, but strikingly similar scenarios occurred in multiple locations for me. Perhaps the short-term and high input agriculture/landscaping model is somehow deeply embedded in the public consciousness. The traditional model is also promoted through policies that dictate what is appropriate to grow on rented land or in a communal garden space.

It might be a leap to compare my experience to the land tenure challenges of large-scale agroforestry systems, but the notion that land use policies undervalue long-term agriculture and agroforestry is a common story.

Travel a few miles down the road from that rental unit in Los Angeles to the site of the former South Central Farm, for example. At one time this was the largest urban garden in the US, packed full of fruit trees and edible perennials that provided food for around 350 families. After the city sold the property to a real estate developer, uninterested in promoting urban food systems, LAPD bulldozed the farm in 2006. Without a guarantee, or even a favorable chance of having the ability to make decisions for a land base beyond a few growing seasons, it is high risk developing crops that provide long term benefits but require higher initial expense, such as fruit and nut trees.

Many food growers and agroforestry proponents still take the risk, understanding the social and ecological benefits of climate smart tree farming. Ben Lawson (pictured at right), a brilliant permaculture designer and emergency/disaster preparedness instructor living in Oregon, lost projects in

 multiple locations because he did not own the land. After months of investing in a project, ownership of the land changed. New landlords held different visions for the property that did not involve food production or land rehabilitation through tree cover. Ben reflects that:

"The sad irony of being a permaculture designer is that so much use of the modernized landscape is temporary. Renters are confined to container gardening. Community gardens are a great model, yet are often at risk of redevelopment…the transient nature of the real estate industry makes long-term investment in establishing productive perennials and tree backyard food crops a marginal practice."

Logan Sander, a natural builder and Master of Forestry Candidate at the Yale School of Forestry and Environmental Studies explored land tenure and farming practices on fifty five farms and yards in Jamaica last summer. While his data analysis is still pending, his hypothesis is that successful agroforestry practices increase with land security.

“The idea is that as tenure is more secure, farmers are going to be planting more edible forestry tree crops and timber crops. Agroforestry elements will be stronger and move away from fast crops.”

While researching in Jamaica, Logan noticed that farmers with more secure land tenure planted long term timber trees among shorter-term crops. They considered this tree growth a safety net or retirement plan for future needs. On the other hand, Logan met farmers interested in agroforestry unable to pursue the practice because, as they explained, they would “have to wait for years and this is not our land.” From his research, Logan witnessed agroforestry implementation obstructed by lack of secure rights to the land.

Ruth Metzel, a teaching assistant for an agroforestry class and former intern at the World Agroforestry Center in Nairobi witnessed similar issues regarding land ownership policies: "Unstable land tenure can be a huge obstacle to practicing agroforestry, because in many cases, as in Costa Rica and Panama, governments have encouraged land clearing in the past in order to demonstrate possessory rights. When farmers and landowners must “prove” that they work the land through creating a clear distinction between their land in productive use and native ecosystems, agroforestry suffers precisely because at an initial glance it blurs the line between field and forest."

Perhaps it is that blurred line between a more “natural” state of a forest and the controlled grid layout of conventional agriculture that was unappealing to the landlord in Los Angeles that removed the trees and native shrubs but left the tomatoes and lettuce greens. Aversion to blurring the distinction between domesticate and wild may explain some of the challenges agroforestry proponents face.

Many policies prevent wider promotion of agroforestry systems, but a few current policies may start to change that trend. I will briefly explore these trends and policies in next week’s post.

A warm thanks to Kate MacFarland, Ben Lawson, Logan Sander and Ruth Metzel for their interviews.

Posted in: Environmental Law & Governance

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