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Environmental Law & Governance

Wednesday, September 10, 2014
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A Post-Communist Landscape: Mother Latvia and her Sustainable Countryside

By Guest Author, Avana Andrade, Yale F&ES '15

Mother Latvia stands in the center of Latvia’s capital Riga and immediately evokes the people’s struggle for freedom from Russia, and alternating German and Soviet occupations. Liberty, a woman cast in copper, lifts up three stars representing different Latvian regions and her posture, head slightly bowed and both arms raised high, conveys a sense of sacrifice that Latvians still recall from a  not-so-distant past. Having gained independence in 1991, the country now pursues its own desired and expected development.

The Latvian government has committed itself to sustainable development. In the words of former Minister for Environmental Protection and Regional Development of Latvia, His Excellency Edmunds Sprudzs, Latvia is dedicated to “environmentally sound, sustainable policy and growth.” However, the definition of what “sustainability” means to the Latvian national identity, and in the face of increasing Western European influence, is up for debate.

After decades of invasion and occupation, rural landscapes are dotted by derelict farms, some of which may appear to be more wild than agricultural after decades of abandonment. The country is marked by large and eerily untouched sanctuaries of land and coastline, which, thanks to historic Soviet dictates that prohibited any access (fishing, farming etc.), now harbor multiple endangered species. As a result, ideas about wild and rural landscapes and how each evokes Latvian national heritage are sources of contention among government officials, rural communities, and international and domestic non-governmental conservation organizations. At the center of these debates is what “Latvianness” is and how landscapes might be managed in that image.

During the 1990s, for example, the fight over sustainable forestry within Latvia was largely driven by the politics of conservation and national identity, namely the tension between two opposing views, “liberal internationalism” and “agrarian nationalism.” Conservative forestry officials defended the sustainability of their forestry practices against the reformists’ arguments (including those of timber companies) that government practices were ecologically harmful and far from “sustainable.” The reform coalition argued for decreased state intervention, and endeavored to facilitate private and foreign owned commercial forestry, thereby revealing a distinct vision for Latvian development. That is, the reformists foresaw a future defined by involvement in international markets, private enterprise, and civil society. Just as the government foresters envisioned their traditional role as protectors of the forest for the Latvian people, so too did the reformists’ liberal sustainable development agenda rely on the idea of a peasant’s deep respect for nature. Both reflected a national consciousness of the Latvian people derived from a relationship with the land. In several ways, therefore, contention over national identity as embedded in the landscape shaped the debate over how to manage natural resources.

Having studied the emergence of national parks in the United States, I wonder, in creating reserves and attracting Western European tourists to experience its wild and “untouched” nature, will the ecological integrity of Latvia’s sanctuaries be jeopardized? And to what extent will Latvian culture (given the multiple definitions of what this is) be commodified by government administrators or non-governmental organizations (NGOs) for international consumption?

To help guide development, NGOs often come to play key roles in coordinating community-based conservation projects.  The role of the environmental NGO is complex, and one that I came to think critically on during my internship this summer at the Baltic Environmental Forum (BEF) in Hamburg Germany. The organization recently kicked off its multi-year VivaGrass project that will restore and maintain grasslands in Latvia, Lithuania, and Estonia.

The grasslands themselves are a quickly vanishing, an extremely rich ecosystem that has co-evolved with human activity along the Baltic coast over hundreds, perhaps thousands of years. Ancient and modern grazing and farming practices have kept shrub and tree growth in check and allowed a staggering diversity of plant and animal species to flourish. In recent decades, however, the local farming communities that once maintained these grasslands were destroyed by Soviet farm collectivization and have remained debilitated under the infusion of food and goods from Western Europe.

Since the VivaGrass project kickoff meeting in May, I came to appreciate how intertwined the environmental conservation goal of the project is with rural development and how, even though BEF’s primary issue is grasslands, it is inevitably acting within a much larger context of history, national identity, and national politics. Latvian, Lithuanian, and Estonian professionals within BEF, in close coordination with rural farmers and local government administrators, are the leaders of the VivaGrass project. Regardless of the heritage of BEF’s team, though, VivaGrass will deal with more than monitoring grassland health.

As BEF’s VivaGrass project begins to create socially and ecologically “sustainable” grassland management models for its Baltic project sites, it is inevitably involved in political and cultural discourses of rural landscape conservation and development. In its early stages, the project will involve rural stakeholder engagement and grassland rehabilitation (shrub and tree removal). Over time, and in coordination with farmers and municipal leaders, the project will establish long-term maintenance schemes. Such maintenance in other grassland conservation projects around Europe has typically entailed purchasing sheep or cows and a fencing or transporting system. These project often hire shepherds to tend to the animals or enlist local farmers to perform the work. Local farmers ideally would be able to sell meat or milk products for profit to local markets or tourists. In some cases, the products from the animals are coupled with the sale of other locally produced goods.

In remaking select Baltic grasslands, VivaGrass also will be re-fashioning the rural landscape, which is both a cultural and agricultural act. Although local stakeholders may not explicitly state the narratives embedded in the landscape, “liberal internationalist” and “agrarian nationalist” stances may nevertheless shape collective impressions about what is an appropriate appearance and form of grassland rehabilitation. BEF, therefore, is poised to advance a cultural and/or political vision of rural development. Even if it does not officially endorse a particular viewpoint, BEF’s awareness of the implications of either narrative is key in anticipating outcomes of the project as it proceeds and balances local and national developmental needs and desires. Furthermore, a sensitivity to the power dynamics associated with rural development and continually assessing to what degree local populations have control over their own development is a critical question that will impact the long-term viability of VivaGrass.

While Mother Latvia has been a central symbol for the country’s embattled path to independence, the history behind her image does not offer a clear path forward now that the Latvian people have rural landscapes and wild spaces of their own. Competing ideas about national identity and responsible socio-economic development create a backdrop against which any non-profit environmental organization’s efforts are organized. The protection of grasslands within the Baltic region are a particularly poignant case in conservation simply because these ecosystems actually rely on human activity. They are, in other words, biological expressions of an ancient human-nature relationship. As such, BEF’s efforts to protect endangered grassland ecosystems is as much cultural as it is ecological. After decades of war and foreign occupation, Latvian government officials, rural community members, and farmers face the socio-biological consequences of land abandonment and farming community collapse. Non-governmental organizations like BEF may be uniquely positioned to help bring about environmentally and socially sound paths of conservation and development.

Avana Andrade is a Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. She earned her B.A. in International Studies and Western European History at Colorado State University in 2010. Before returning to school, she worked as a public historian and backcountry ranger with the Student Conservation Association and the National Park Service in both Northern Arizona and Southern Utah. Her work has focused on the history of grazing and cultural resource management in Glen Canyon National Recreation Area and Canyonlands National Park. Work and recreation on the Colorado Plateau motivates her primary interest in grad school, environmental conflict mediation. Avana is a Colorado native and an avid backpacker and gardener.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, June 19, 2014
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Homegrown Energy and Homeland Security

By Guest Author, Sara Kuebbing, Gaylord Donnelley Environmental Postdoctoral Associate, Yale Institute for Biospheric Studies

In a quest to reduce dependence on foreign oil, the United States government is increasing its mandatory minimum levels of renewable biofuel production each year. Because the US’s first large-scale foray into biofuels—corn for ethanol—was heavily criticized, many non-food plant species are now under consideration for biofuel production. However, this search for non-food biofuels has another, currently underappreciated, impact: The introduction and spread of invasive plant species across the US.

The problem with using nonnative plants for biofuel is that successful biofuel crop traits —short generation time, pest resistance, high growth rates, high water-use efficiency—are the same traits of many invasive plants.

Nonnative plants are those humans introduce into an area from far-off geographic regions. If these plants spread far beyond the place where they were originally planted, they are considered invasive. Not all nonnative plants turn invasive, but recent research indicates that the species the US government is considering for biofuels are three times more likely to be invasive than a random sampling of nonnative species. For more on the plants currently under consideration, see the sidebar Potential Invasives Awiting Approval below.

To address this, the National Environmental Coalition on Invasive Species brought invasive plant experts from around the nation to the Washington, DC last week to meet with members of Congress, congressional staff, and federal agencies The goal of the meetings was to dissuade policymakers from providing federal support for the use of nonnative, invasive plants as biofuel feedstock.

The Environmental Protection Agency gave the green-light nearly a year ago to businesses wishing to grow two well-known invasive grasses: giant reed (Arundo donax) and napiergrass (Pennisetum purpureum). Ironically, the EPA is not the only governmental agency thinking about these species. Giant reed, an aptly named grass that can easily grow stalks over 30 feet in height, is growing unabated along the US-Mexico border. This weed presents such a problem for border patrol agents with the Department of Homeland Security that DHS has commissioned the US Department of Agriculture’s help in coming up with a method to reduce the giant reed populations in Texas.

So why would the EPA approve the wide-spread planting of invasive species? It comes down to strict and literal adherence to laws passed by Congress a few years back. Currently, the EPA reviews potential biofuel feedstocks as part of the Renewable Fuel Standards (RFS) Program, created under the Energy Policy Act of 2005 and revised in the Energy Independence and Security Act of 2007. These laws, in short, demand that the transportation fuel must be a blend of traditional carbon-intensive oil as well as renewable fuels with lower carbon emissions.

EPA conducts a greenhouse gas (GHG) lifecycle analysis on potential biofuel feedstocks to determine if they have lower carbon emissions than traditional fuels. Biofuel producers and purchasers can (and must) petition the EPA to consider their specific biofuel “pathway” to see if it is eligible for renewable fuel standard credits. Because the only explicit requirement in the Energy Independence and Security Act is for EPA to perform GHG analysis, the EPA is sticking to this bare minimum in its environmental review, and has chosen to ignore other existing mandates, such as a presidential Executive Order requiring federal agencies to prevent the introduction and spread of invasive species.

Although EPA doesn’t explicitly consider the potential invasiveness of a plant species under the RFS program, the agency did respond to the unanimous outcry from scientists in 2012 when it first approved giant reed and napiergrass as RFS compliant. However, EPA’s concession did not signal a commitment to consider the ecological impacts of potential feedstocks. Instead, EPA determined that if these invasive plants spread beyond the original planting, necessary control and management efforts would increase their “carbon-costs.” In other words, EPA determined that in some cases, invasion may have climate implications.

EPA ended up withdrawing the original 2012 ruling, and replacing it in 2013 with a supplemental ruling that required producers to submit a “Risk Mitigation Plan” that lays out a plan for keeping these species from spreading beyond the biofuel plantations. So far, no company has submitted a plan. And the scientific community is skeptical about the effectiveness of any self-enforced plan.

For those of us who think using invasive plants for biofuels is a bad idea, the ultimate frustration is that many other plants could make excellent feedstock. There does not have to be a “business vs. environment” trade-off when choosing renewable biofuel plants. Although the traits of biofuels and invasive plants strongly overlap, scientists have a resoundingly solid track record of predicting what species are at “high risk” of becoming invasive, and they’ve developed many practical and useful Weed Risk Assessment tools that allow users to evaluate the potential invasiveness of a species. These tools are so accurate that some governments, including Australia and New Zealand, require that all plant species pass an assessment before introduction into the country.

The scientific recommendation is that Weed Risk Assessments are made a fundamental component of any federal decision on biofuel production. Plants that are considered “low-risk” should be prioritized and incentivized over those that are “high-risk” for invasive potential.  Last week, there was some indication that this could be a possibility. Scientists with the National Environmental Coalition on Invasive Species had positive reception from some agency staff, namely the Department of Energy’s Bioenergy Technologies Office that provided R&D funding for many potential biofuel feedstocks. These staffers were already aware of the invasive potential of some biofuel feedstocks, and seemed receptive to using more formalized assessment tools in their own internal decisions on what species should receive federal funding.

However, it appears that under the current status quo, ecological invasions are likely to increase. The passing of the Energy Independence and Security Act increased EPA’s workload without increasing staffing to complete the task. This has, in part, probably led to EPA’s decision to stick with only the limited consideration of lifecycle GHG emission. And, in another round of agency irony, the Department of Agriculture is touting the transformation of field pennycress (Thlaspi arvense) from “nuisance weed to biofuel” as if the new use will change its ecological properties or limit its invasion.

USDA has a long history of importing invasive plants into the United States. Through the Department of Agriculture Soil Conservation program, many nonnative species were promoted for preventing soil erosion and improving wildlife habitat. The most infamous of these species is kudzu (Pueria lobelata) “the vine that ate the south,” but also includes the highly invasive bush honeysuckle (Lonicera maackii), autumn olive (Elaeagnus umbellata) and Russian olive (Elaeagnus angustifolia).

Would it really be too much to ask for our federal agencies to learn from their past mistakes and avoid promoting kudzu’s successor?

Want to know more about invasive species and US biofuel policies? Check out these good reads:

Lewis KC and RD Porter (2014.) Global approaches to addressing biofuel-related invasive species risks and incorporation into U.S. laws and policies. Ecological Monographs 171. http://dx.doi.org/10.1890/13-1625.1

Quinn LD, Gordon D, Glaser A, Lieurance D, and SL Flory. (accepted, in press) Bioenergy feedstocks at low risk for invasion in the US:  A white-list approach. Bioenergy Research.

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Potential Invasives Awiting Approval

While it seems highly unlikely that the EPA will revise its final ruling on giant reed and napiergrass, more potential invasive plants are sitting in the EPA’s docket. Most of these petition listings are so vague that it is impossible to evaluate the invasiveness potential without further clarification of the exact species under consideration. Currently, the EPA has four different petitions for “grain sorghum,” one for “biomass sorghum,” one for “jatropha,” and one for “pennycresss.” Although scientists and taxonomists purposely use a consistent and widespread convention for naming plants and animals so that they can avoid confusion between different languages or even different regional slang, these petitions are most likely intentionally vague to protect proprietary information about the exact variety of the plant under consideration. 

For example—and using the proper conventional nomenclature—the plant genera Sorghum contains a few highly invasive plants species: Sorghum bicolor (which has a slew of common names including shattergrass, Sudangrass, and, sometimes, grain sorghum) is listed as a noxious weed in six states, and its close relative Sorghum halepense (Johnsongrass) is listed in a 19 states. Likewise, the genera Jatropha contains two members of the IUCN’s infamous “100 of the World’s Worst Invasive Alien Species.” Some proactive researchers have already red-flagged these species because of Weed Risk Assessment results: Jatropha curcas was resoundingly rejected by three different assessments, Sorghum halepense and Thlaspi arvense (field pennycress) by one, and Sorghum bicolor was recommended for further evaluation three times.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, May 29, 2014
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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
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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
Wednesday, April 23, 2014
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Going the Distance: An Update on Efforts to Address Emissions in the Aviation and Maritime Sector

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

Aviation and maritime transportation make up an important part of the transportation sector—so, too, are the emissions associated from their fuel use. This article reflects on the progress made to address greenhouse gas emissions within the International Civil Aviation Organization and International Maritime Organization, and presents a blueprint of activity within the coming year.

Member States to the International Civil Aviation Organization (ICAO) make decisions related to aviation emissions under the Organization’s sovereign body, the ICAO Assembly. ICAO’s 38th Assembly met on 13 October 2013, and its outgoing resolution on climate change summarizes the Organization’s progress and challenges addressing emissions.

Under ICAO Assembly Resolution A38-18, Member States agreed on, among other things, three elements related to greenhouse gas emissions. First, Member States repeated their resolve to work toward a global annual average fuel efficiency improvement of 2 percent until 2020 (with a long-run aspirational efficiency improvement rate of 2 percent per year from 2021 to 2050). Second, Member States requested the ICAO Council to develop a global CO2 certification Standard for aircraft (with a view to adoption by Council in 2016)—the purpose of which is to reduce aircraft CO2 emissions through fuel-efficient technologies in aircraft design. Third, the Assembly agreed to further its support for Member States’ action plans to reduce aviation emissions through capacity building and assistance. For an example of this capacity-building work, see our IISD calendar entry on ICAO States’ Action Plan Seminar for the South American Region and North American, Central American and Caribbean Region.

The second big topic of work within ICAO is related to market-based measures. During the 38th Assembly, this issue was the source of difficult and protracted debate between Member States. Paragraph 19(d) within Resolution A38-18 suggests a general roadmap of work before the 39th Assembly in 2016. Member States requested the Council to identify problems with, and corresponding recommendations for, market-based measures. Member States also requested the Council to identify the “mechanisms for the implementation of the scheme from 2020 as part of a basket of measures.” Thus, technical work remains for the coming year. This includes work on environmental and economic impacts and possible options for a market-based measure scheme. Finally, in the Annex of Resolution A38-18, Member States agreed on guiding principles for the design and implementation of market-based measures.

Just as ICAO had a busy year of work on climate issues, so too has the International Maritime Organization (IMO). Member States within IMO have been working to address greenhouse gas emissions from international shipping, which is estimated to make up approximately 2.7 percent of global emissions. IMO Member states address issues related to greenhouse gas emissions under the Martine Environment Protection Committee (MEPC).

This past year the Committee focused on technical and operational measures relating to energy efficiency for ships. In particular, the Committee focused on developing technical and operational energy efficiency regulations under the new chapter 4 of the International Convention for the Prevention of Pollution from Ships (MARPOL) Annex VI, which went into effect on 1 January 2013. This chapter includes requirements for new ships under the Energy Efficiency Design Index and the Ship Energy Efficiency Management Plan.

In addition to regulation, IMO has also been working on energy efficiency developments through research and capacity building. The 65th session of the Committee adopted resolution MEPC.229(65) on promoting technical cooperation and transfer of technology relating to energy efficiency of ships. The MEPC also approved the terms of reference to initiate a study to update emissions estimates for international shipping. Despite these areas of progress, the MEPC was unable to agree on a discussion for market-based measures and related issues. Member States thus decided to suspend this issue to future sessions. The 66th Session of the MEPC met from 31 March to 4 April. Among other items, the 66th Session considered technical and operational measures for enhancing energy efficiency of international shipping and reducing greenhouse gas emissions from ships.

Looking back on the past year, IMO and ICAO have both taken up important issues related to greenhouse gas emissions from fuel used for international aviation and maritime transport. Future meetings will largely focus on technical and operational issues related to emissions, but there is also room for important policy developments in the background. We will have to wait until future meetings to know what exactly is on deck—or, perhaps also, on the runway—for the rest of 2014.

A version of this blog entry initially appeared on the International Institute for Sustainable Development Reporting Services Climate Change Policy and Practice site.

Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, April 21, 2014
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Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier

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

The last speaker in the Yale Center for Environmental Law and Policy’s 2014 Climate and Energy Bookshelf speaker series is a fellow Alaskan. I have been reading journalist and author Tom Kizzia’s stories since I first started following the news as a teenager. As a reporter for Alaska’s largest newspaper, the Anchorage Daily News, Mr. Kizzia has been on the front lines of our state’s most pressing issues for years.

His recent book Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier, one of Amazon’s best books of 2013, details the strange (but true) journey of the self-proclaimed Papa Pilgrim, who established his wife and fifteen children in America’s largest national park in south-central Alaska. The Wrangell St.-Elias Park, at over thirteen million acres, is larger than the states of Connecticut, Massachusetts, Rhode Island and New Jersey combined. When the Pilgrims moved there in 2002, they challenged the National Park Service’s authority to conserve the nation’s protected areas, and their attempts to bulldoze thirteen miles of road and to develop their property inside the park touched off one of the most-visible controversies between environmentalists, government officials and local land-rights advocates in a generation.

The Pilgrims story will be the focus of Mr. Kizzia’s lecture "Frontier Gothic: Transcendentalists, Puritans, and Pilgrims in Alaska" on Wednesday April 23 at the Yale School of Forestry and Environmental Studies (also available for live stream at http://new.livestream.com/YaleFES/frontier-gothic). If you are interested in battles over national parks or protected areas, public land vs. private property disputes, religious connections to the wilderness, or Alaska’s many environmental debates,  this talk is for you.

Today Wrangell St. Elias Park, with about 25 percent of its land is covered by glaciers, is a hotbed not only for the land conflicts between the federal government and the region’s sparse inhabitants, but also a nexus between climate change and its impacts on wilderness areas.  The National Park Service and other organizations, such as the National Parks Conservation Association, are monitoring how climate change is impacting the area’s glaciers and weather.  They claim melting glaciers and ice within the region are uncovering many Native American and former mining industry artifacts that were left after the area’s early 1900s copper mining rush, artifacts that archaeologists are trying to preserve amidst global change. I look forward to seeing everyone at the lecture.

Verner Wilson, III, is a first-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 & Governance
Monday, April 14, 2014
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The New Farm Bill + Sustainable Farming Systems: A Conversation with Ariane Lotti

By Guest Author, Avana Andrade, Yale F&ES '15

On Wednesday, April 16, we will continue our conversation about the farm bill and the future of farming with Ariane Lotti, assistant policy director at the National Sustainable Agriculture Coalition. Lotti will speak with us about how the 2014 farm bill shapes emerging alternative food systems and will give us insight into spaces for subsidy reform in the coming years.

farm subsidy is essentially a financial “safety net,” which is designed to help agricultural producers weather unstable markets from year to year. This security is intended to even out the fluctuations in market prices, demand, and weather and protect the agricultural community from collapse as a result of one or two bad years. These subsidies, however, are not disseminated broadly within the entire agricultural system of the United States. Rather, they are heavily weighted towards the five commodity crops: corn, soybean, cotton, and rice. Dairy and sugar producers are also bolstered by a separate market and cost control system.

These subsidies are government intervention in the food systems that began in the United States during the New Deal and Agricultural Adjustment Act of 1933 (though the United Kingdom has much earlier versions of such government action). Although these subsidies grew out of economic necessity, they have come under increasing attack in recent years. While proponents point to the need for subsidies in order to make domestic products competitive in the international market, others argue that they distort markets. This distortion, detractors hold, is not only detrimental to poor farmers in developing countries but also places excessive burden on domestic taxpayers, while incentivizing environmentally harmful agricultural practices, thereby leaving more environmentally friendly techniques underfunded.

Commodity programs dispense billions of dollars every year to farmers and in order to access these funds, farmers may put marginal land into production, a decision that can lead to overproduction, and a prompt price collapse as in the rice industry of the 1980s. Opponents of historic farm subsidies quickly point to the overuse of fertilizers and pesticides that farmers use to make marginal cropland more productive, a behavior incentivized by subsidies.  The resulting nutrient loading and pollution, they argue, creates an unnecessary environmental problem.

While the 2014 Farm Bill may have upheld historic trends in maintaining an agribusiness protected by farm subsidies, it does invest more than $1.2 billion over the next five years for programs for beginning farmers, local food, and organic agriculture. The Farm Bill also “reconnects crop insurance subsidies to basic conservation requirements,” a good sign for those concerned about the impact of modern industrial agriculture on U.S. ecosystems. However, as Ariane Lotti will demonstrate, the Bill’s persistent subsidy structure leaves much to be desired if truly innovative farming practices are to take hold.

Arianne Lotti holds a Master of Environmental Management from Yale University and, in addition to her work at the National Sustainable Agriculture Coalition, she has served as the policy director for the Organic Farming Research Foundation. Lotti is a published author and her research remains focused on organic and conventional farming in the US and in Europe. Lotti also serves on USDA’s National Agricultural Statistics Service Advisory Committee.

To register for Lotti’s talk, please see this link: https://www4.gotomeeting.com/register/576821455.

Our final speaker in our Frontiers in Food and Agriculture series is Sarah Carlson, research coordinator at the Practical Farmers of Iowa. Carlson will be concluding this series with her talk “Driving Sustainability: Empowering Growers with On-Farm Research.” For more information about her talk please visit our events page here:http://envirocenter.yale.edu/events. To register for this final webinar see this link: https://www4.gotomeeting.com/register/470665063.

Posted in: Innovation & EnvironmentEnvironmental Law & Governance
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How the Public Trust Doctrine Can Save Us from the Perils of Climate Change

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

University of Oregon environmental and natural resources law Professor Mary Christina Wood tries to minimize her personal travel to reduce her carbon footprint.   But as a professor, she believes that it is extremely important to constantly engage with future leaders who will have to deal with the growing impacts of climate change.  That is why she traveled across the nation to offer her expertise at the Yale Law School on April 3rd

Her message to the future leaders at Yale offered a glimmer of hope and a new way of thinking about how environmental law can help battle the perils of climate change and other environmental issues.  The paradigm shift that she urges the environmental community to undertake in order to help solve the climate and environmental challenges of our time is also eloquently stated in her new book Nature’s Trust: Environmental Law for a New Ecological Age.While reading her book, listening to her lecture, and having conversations with her throughout her visit at Yale, I was intrigued with this new way of thinking.

It’s no secret that the many current environmental statutes and the strategies that the environmental movement has used to try to reduce greenhouse gas emissions have failed in many ways.  It was all too evident this past week in Berlin, Germany, where the world’s governments along with its most expert and credible scientists met to finalize an updated scientific report by the United Nation’s Intergovernmental Panel on Climate Change (IPCC).  The report, released on Sunday April 13, is to be used for discussion at the 2015 United Nations Framework Convention on Climate Change (UNFCCC) conference in Paris where expectations are high for a strong international greenhouse gas reducing treaty.

In putting together the IPCC document, scientists agreed that humans are fuelingthe extreme storms and weather to which many parts of the world have fallen victim in the past decade.  They also agreed that there needs to be a global shift on how we get our energy, and that moving to renewable energy sources will be critical.  Yet many of the world’s political leaders used the IPCC process in Germany to try to hack away the strong language that scientists agreed on.  For example, Saudi Arabia’s officials did not want the report to contain scientific findings that declare that emissions need to go down 40 to 70 percent by 2050 for the world to stay below a warming of two degrees Celsius.  Saudi Arabia would stand to lose a lot if countries ultimately acted upon that language, since its economy relies heavily on the oil industry.  While the language remained in the scientific document, it is unlikely to be ratified at the UNFCCC because the process requires unanimous consent.

Here in the United States, a recent Supreme Court ruling also paved the way for wealthy special intereststo influence the political process even more, which will likely have a lasting impact on climate-related law and policy.  In the case McCutcheon vs. the Federal Election Commission, the Supreme Court ruled earlier this month that there can be no limits on how many candidates for federal office a single private donors can give to.  Under the previous rules, a donor could only give a maximum of $123,200 in federal races and parties in each two-year election cycle.  Now an individual donor can give up to $3.6 million in federal U.S. Senate and House races. Thisallows rich political donors connected to the fossil fuel industry, such as coal company CEO Shaun McCutcheon who brought the suit, to have more political influence. 

Professor Wood argues that because of the grip that fossil fuel interests hold on the political process, we must look at another way to fight climate change.  She argues that the Public Trust Doctrine surpasses legislative and regulatory environmental efforts that have thus far failed to curb greenhouse gas emissions.  The doctrine, enshrined in constitutional and common law, states that governments hold certain natural resources needed by everyone, such as clean air and water, in trust.  Government officials cannot just give those resources away for private ownership, and may not permit the demise of those resources.  Public officials also have a continuous duty to safeguard the long-term preservation of those resources for the benefit of future generations.  Professor Wood argued that the founding fathers recognized that the people rely on clean natural resources such as wildlife and streams to exist, and that our government must act as a trustee for these resources.

Use of the doctrine for environmental protections is reaching a critical point.  In a recent groundbreaking case, on December 19,2013 the Pennsylvania Supreme Court ruled that Robinson Township in eastern Pennsylvania was allowed to ban the practice of hydrologic fracturing or “fracking” for natural gas within their jurisdiction to protect their town’s water supplies.  In that decision, former Chief Justice Ronald Castille cited the Public Trust Doctrine and wrote that there are certain environmental rights that we all hold, such as a right to clean air and water, and in addition to being identified in the Pennsylvania constitution, these rights are inherent to the public at large. 

The Public Trust Doctrine is currently being tested in federal court by a group of young people who argue that their rights to clean air are being compromised by increased greenhouse gas emissions. The youth are trying to force the Obama Administration to create a comprehensive Climate Recovery Plan in order to protect the “Atmospheric Trust” that they argue young people and future generations are entitled to.  The Washington D.C. Circuit Court of Appeals will decide the case on May 2nd, and Professor Wood will undoubtedly be paying attention to what she believes will be a historic ruling. 

 

Verner Wilson, III, is a first-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: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Thursday, April 03, 2014
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National Environmental Law Moot Court Competition Puts Theory into Practice

By Susanne Stahl

The National Environmental Law Moot Court Competition at Pace Law School in White Plains, N.Y., is the largest interschool environmental moot court in the nation, regularly attracting over 200 students from various schools to compete and 200 attorneys to serve as judges. Halley Epstein, YLS ’14, and Sarah Langberg, YLS/FES ’14, participated in this year’s competition and made it through to the semifinal round—one of the top nine teams out of the 76 competing—and the only team without a coach to advance to the penultimate round.

They recently sat down with the Yale Center for Environmental Law & Policy to discuss their experience.

What is a moot court?

Sarah Langberg: The Pace competition simulates writing and arguing in front of an appellate court. Participants receive a prompt describing issues decided either by a state supreme court or a lower federal district court; they then argue those issues on appeal to a higher court.

The organizers generally pick an issue that’s heavily contested in the courts—one for which there’s no clear outcome; different courts may have decided in conflicting ways; it’s not clear which side is correct or what the best argument is. It’s for the students to then determine the best legal reasoning and policy arguments and ask themselves what they can bring to bear on these unresolved questions.

What issues did the competition highlight?

Sarah Langberg: The competition highlighted six key issues—two procedural, and four substantive. Each involved the jurisdictional reach of the Clean Water Act. The nuances of the Clean Water Act’s jurisdiction have been contested for decades, and a series of Supreme Court decisions in the early 2000s made these issues even more confusing.

Halley Epstein: Even though the Supreme Court addressed some of the nuances of our case, their past decisions left many unresolved questions in the field. The procedural issues we had to address dealt with who can bring suit and who can enforce certain rights in federal court.

Sarah Langberg: For the Clean Water Act in particular, jurisdiction is so important because once you say a water is protected under the Act, it’s clear cut what those protections are and how they’ll apply. But getting that water protected under the Act is the game, and people often heavily contest that jurisdiction.

How much time did you have to prepare?

Halley Epstein: We received the prompt in early October, and we had two months to research and write the brief itself. We then had another two and a half months to prepare for the oral argument part of the competition.

Sarah Langberg: There were three parties in case, and we had to choose only one party for whom to write our brief. But for the oral arguments, we had to argue all three sides.

Halley Epstein: The morning of the competition we drove from New Haven to White Plains.  We couldn’t find out which side we were arguing until we arrived, so we had a short amount of time to orient ourselves and get into the mindset of “this party’s right and here’s why.”

What was the competition itself like?

Halley Epstein: We argued five cases—three preliminary rounds, the quarterfinal round, and then the semifinal round. Each round is a full two hours, with three teams participating in a case. Each student is allotted 15 minutes (30 minutes per party, since two oralists represent each team in a given round) with the remaining time left for rebuttal.

Most teams had three students; only two argue per round, so one person typically gets a break. But as a two-person team, we did not have any breaks—the competition was non-stop. There were a lot of mental gymnastics going on in switching between the different parties each round.

Sarah Langberg: Fifteen minutes of arguing in front of the judges, by yourself—just you having a conversation with the judges—feels like a very long time. And that’s what it’s like in real appellate courts.

How does an experience like this shape or change your perspective on the practice of law?

Sarah Langberg: I’ve been thinking that I want to litigate. Successfully standing in the line of fire of the judges’ questions was definitely an affirming experience. I enjoyed the atmosphere. It didn’t feel like pressure, it felt exciting.

Halley Epstein: We’re both interested in litigation, but neither of us had participated in moot court before. The practice—even if we had gone home after the first round—gave us the opportunity to learn about our styles, things we want to work on, and the conversational aspects of our presentations that we want to continue to build.

Sarah Langberg: The brief writing aspect of it was also very valuable. We wrote briefs our 1L year, but that was just as we were coming into law school. Through various internships and practical experience, we’ve written a section of something here or there, so doing a whole brief ourselves was an invaluable experience.

Halley Epstein: And the team aspect of dividing the issues and then consulting with each other to ensure our lines of reasoning were consistent was also important because, in the real world, you may have primary responsibility for a motion or brief, but you mostly likely will be writing with someone else.

It was interesting to talk to students from the other teams and find out how they had prepared. The competition was a fun and unique way to connect with other people interested in environmental issues.

Sarah Langberg: Preparing the brief and oral arguments from three perspectives forced us to think about issues in various lights and put our education into practice in a way that we often don’t get to do in standard classes. It was a wonderful experience.

Halley Epstein: Because we had such a good experience, we’re encouraging students in the Yale Environmental Law Association to coordinate a more formal team next year. Even though our informal effort worked very well, a little more structure will help YLS field competitive teams in future years.

Halley Epstein, YLS ’14, will be clerking on the U.S. District Court for the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit after graduation.

Sarah Langberg,YLS/FES ’14, is a joint-degree student with the Yale School of Forestry and Environmental Studies. She will be clerking for the Chief Justice of the Alaska Supreme Court after graduation.

Posted in: Environmental Law & Governance
Wednesday, April 02, 2014
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Advocate for Future Generations and Climate Change Policy to Speak at Yale Law School

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

The state of the world is at a crossroads, and according Rajendra Pachauri, Chairman if the Intergovernmental Panel on Climate Change (IPCC), "in view of [the current] impacts [described by the IPCC’s Fifth Assessment Report], and those that we have projected for the future, nobody on this planet is going to be untouched by the impacts of climate change."  Related, the United Nations World Meteorological Organization said that 2013 was the sixth-warmest year on record. Thirteen of the fourteen warmest years were in the 21st century alone, showing how human activities have warmed the planet. 

U.N. scientists that met last week in Japan to discuss these findings underscored how humans are vulnerable to a changing climate, which can mean more extreme weather events and spiral into related disasters.  They cited that without anthropogenic emissions of fossil fuels, it would have been “virtually impossible for Australia’s record hot calendar year of 2013…illustrating that some extreme events are becoming much more likely due to climate change.”  And it’s likely to get worse, which does not bode well for future generations who will have to deal with the impacts as emissions continue to increase.

That is why I’m pleased that someone who has tirelessly advocated for future generations and a new way of thinking on climate change policy will be coming to Yale Law School on Thursday April 3rd.  Mary Christina Wood is the Philip H. Knight Professor of Law at the University of Oregon as well as Founder and Faculty Director of the nationally acclaimed Environmental and Natural Resources Law Program at the University of Oregon School of Law. She will be discussing her recent book, Nature’s Trust: Environmental Law for a New Ecological Age, which defines the frontiers of public trust law and maps out a full paradigm shift for the way government agencies around the world manage public resources.  It reveals the dysfunction of current statutory law and calls upon citizens, government employees, legislators, and judges to protect the natural inheritance belonging to future generations as part of the public trust.  Professor Wood’s talk begins at 6:10 PM on Thursday, April 3rdin Yale Law School’s Room 128 (127 Wall Street); it is free and open to the public and refreshments will be served.

The talk, co-sponsored by the Yale Center for Environmental Law & Policy and Yale Climate and Energy Institute, is part of the Climate and Energy Bookshelf speaker series featuring new publications by renowned environmental policy thinkers including Brian Keane, Todd Wilkinson, and Tom Kizzia.

Verner Wilson, III, is a first-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
Tuesday, February 25, 2014
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Brian Keane Kicks off Bookshelf Series with Discussion of Renewable and Efficiency Solutions

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

On Wednesday, February 12, SmartPower President Brian Keane kicked off Yale’s Climate and Energy Bookshelf spring 2014 speaker series. Mr. Keane is president of SmartPower, a company dedicated to reducing greenhouse gas emissions, and author of the recent Green is Good: Save Money, Make Money, and Help Your Community Profit from Clean Energy. His lecture at Yale F&ES, titled “50 Shades of Green” outlined strategies to help increase the use of renewable energy, to encourage behavior changes toward energy efficiency and other relevant public education initiatives to fight climate change. 

Mr. Keane uses a multi-prong approach in his advocacy to tackle climate change. In the book, Mr. Keane outlines why adopting green technology is not only good for the environment, but can increase savings for individuals, businesses and society. His book shows that using renewables like solar energy is much easier than many people realize, and it is more acceptable to use in today’s society. It is becoming a norm for people who once consumed old greenhouse gas emitting technologies to make the switch toward greener technologies. For example, the US Department of Energy has also made it easier for Americans to achieve this goal, outlining other ways to save money and to find rebates and tax credits in individual states

As president of SmartPower, Mr. Keane explained the approaches that his company uses to achieve their goals. SmartPower uses a form of community-based campaigning to encourage behavior change over the long term, and shows people that they truly can be part of the ‘50 shades of green’ movement as part of their efforts to reduce emissions. The main approach is called COR. It stands for efforts on Community outreach, Online platforms and social marketing (person to person outreach) and Rewards and Incentives. One example is SmartPower’s role in Solarize Connecticut, a partnership between Keane’s organization, the Connecticut Clean Energy Finance and Investment Authority and the John Mercke Fund, to increase the use of solar panels by homeowners, businesses and others in Connecticut. The organization provides countless workshops and other tools to help people understand the benefits and logistics of using solar energy. It keeps in touch with clients regularly and provides online assistance to encourage collaboration.

SmartPower is not looking at energy solutions in Connecticut alone. During the lecture, Mr. Keane discussed the Arizona Solar Challenge, which is an effort that seeks to increase the number of owner occupied homes using solar energy to at least 5 percent in sunny Arizona by 2015. If 5 percent of the total homes in a community reach this goal, SmartPower calls it an “Arizona Solar Community." So far, six communities throughout the state have been award this title, and a handful of others are heading that way. If the trend continues, it will mean a higher renewable energy profile for the whole state of Arizona. The Energy Information Agency ranks each state in terms amount of renewable energy capacity and generation, and partly by the efforts of SmartPower and others, Arizona already ranks in the top ten for renewable energy capacity. Everyone can check renewable energy usage statistics on their state here.

Renewable energy won’t be enough to reduce emissions though.  Mr. Keane pointed out that despite living in homes and having infrastructure that is more energy efficient compared to the past, we are all still using more energy than we ever did before.  Humans have to do more.  Behavior changes at both the individual level and on the societal level will be key if we are ever to get serious about climate change.  One of the behavior changes is to ensure that we understand why we are using more. 

In his book and lecture, Mr. Keane called on consumers to become more “energy smart” and to reduce energy waste. One of the wastes that he wants to tackle is called “phantom load”. It is wasted energy by everyday household items such as microwaves that use more electricity by just sitting in the house and idly being plugged into an outlet. That means more energy is used to power the microwave clock than for the purpose of actually heating food. The Carbon Fund, a 501(c) 3 non-profit also dedicated to reducing emissions, has plenty of tips on how to reduce your individual energy waste including reducing phantom load. It also lists practical steps to reduce emissions, such ways to lessen the amount of junk mail sent to you which would reduce paper use and mail distribution costs.

All of this highlights a debate on what is the most effective way to combat climate change. It is a question of whether to work towards more command and control regulations, or to focus on voluntary measures such as encouraging more energy efficient industrial and consumer behavior. Here in the US, the EPA is confronting a new Supreme Court challenge from industry groups that say EPA is overstepping its authority on regulating greenhouse gas emissions. This new case will test whether or not the EPA has the authority on a new rule that would only permit expanding new industrial energy facilities if companies also come up with ways to reduce their greenhouse gas emissions. If the EPA wins, Mr. Keane’s efforts to increase energy efficiency and renewable energy use will become all the more important. It will require one of the largest greenhouse gas emitting nations and its citizens to look at the efforts of businesses such as SmartPower before bringing more energy on the line. If that were the case, it would be a win-win situation for both Mr. Keane and the world on efforts to reduce greenhouse gas emissions.

Verner Wilson, III, is a first-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 Attitudes & BehaviorInnovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Monday, February 24, 2014
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The View Without Supermarket Vision: Thomas Berry and the “Great Work”

By Guest Author, Avana Andrade, Yale F&ES '15

Right after high school graduation my friend Emily and I took a road trip to Taos, New Mexico. We were on our way to a friend’s bed and breakfast to stay and enjoy the desert sun before facing the rest of our lives. We stopped at the Rio Grand Gorge Bridge and, as we left the car to admire the gorge, a homeless man pushed a cart across the bridge, gestured toward us and, from under a beard and baseball cap, called us “supermarket girls.” I grew up working for the family gardening business and, having grown many of my own vegetables and plants, I resented his comment and thought, “I am NOT a supermarket girl!” Although hardly the type of comment to raise one’s defenses, I have never forgotten his words. For some reason, that phrase has taken on new meaning over the years.

What was this man commenting on? He was, perhaps, pointing to some truth about where Emily and I were coming from, and what kind of life we had presumably led. Along our road trip in Colorado and New Mexico, Emily and I came face to face with expressions of our national agricultural production in the West: vast irrigation systems, dams, highways, satellite towns propped up by a fossil fuel economy, and drought-prone landscapes heavily irrigated or roamed by cattle. Indeed, despite both of our families’ humble origins, Emily and I were accustomed to going to the grocery store and unquestioningly buying produce for our families without any conception of how the system really functioned. So maybe we were, in a way, “supermarket girls.” I have never been comfortable with the phrase and am now exploring the implications of being part of a “supermarket society.” Of course, beneath the supermarket façade is the story behind the polished apples, shiny peppers, and perfect potatoes—this story is as illuminating as it is alarming. The tons of topsoil rushing downriver, the nationwide bee colony collapse, the already vanished forms of plant and animal life call for a better way or, as Thomas Berry calls it, the “Great Work.”

In his February 12 talk, “Creating a New Food Future,” Andrew Kimbrell highlighted the ways in which industrial agriculture exhausts our soils, imperils our pollinators (the critical key to fertility), and eradicates our rich history in seed biodiversity. We are now reckoning with a system that undercuts the very foundations upon which it rests. The specter of drought across the West reveals the unfortunate fact that our water law is based on data from an unusual wet spell. Now climate change will likely reduce the Colorado River’s flow even further, the source of all that is green in much of the West and Southwest, leaving regional planners and farmers clamoring for solutions. The current water crisis in California and the likely reality of a long-term drought, points to the need to re-align our agricultural regime.

The water crisis that threatens agriculture in states like California, Arizona, and Colorado is but one of many problems embedded in an agricultural system that exhausts farmland and natural resources without replenishing them. This system, as Kimbrell reminds us, is completely unregenerative and the consumers’ “supermarket vision,” or disconnection with their own food sources, is one of its symptoms. 

According to Kimbrell, as we begin to realize the vulnerability and danger involved in industrial agriculture, we should see the organic movement in the United States as the starting point, our conceptual baseline from which a greater transformation of American agriculture can occur. That is, the organic movement cannot, by itself, solve all of the problems associated with the food system as it is, but it is a worthy and necessary launch pad. Part of this change is certainly related to policy, technology, and consumer habits, to name a few, but it also has to do with the way that Americans view nature.

Many social scientists have long examined American attitudes towards nature. Thinkers such as Henry David Thoreau, John Muir, Rachel Carson, Lynn White Jr., and Thomas Berry have all observed and decried a disjointed and extractive relationship with the natural world. This, in turn, shapes the manner in which we use nature for sustenance. Historically, westerners have understood nature to be a wilderness in need of taming, unsanitary and dangerous, or a static source of goods that exist to serve humankind. People have paid too little attention the long-term effects and viability of monocropping, mass chemical and pesticide use, or cotton farming in the desert. The industrial form of agriculture and of modern life has devastated the healthy functioning of ecosystems around the globe and academics have anticipated the need not only for economic and legal change but for a far more fundamental change in perception. The historian Thomas Berry has referred to the next significant human movement as the “Great Work,” or the “transition from a period of human devastation of the Earth to a period when humans would be present to the planet in a mutually beneficial manner” (The Great Work: Our Way into the Future). Berry asserts that we must begin to recognize and reclaim our responsibility not as commanders and takers of natural resources but as members in a community that we depend on and depends on us. Americans have little sense of reciprocity between nature and their communities, and this is borne out in exhaustive forms of modern agriculture.

Perhaps, to some this may sound either bizarre or unrealistic, but the evidential need for a change in attitudes is compelling. We are losing topsoil up to forty times faster than the land is regenerating it, we continue to massively overdraw 20 percent of the world’s aquifers, we’ve already lost 75 percent of crop biodiversity, and we’ve seen a 50-percent decline in pollinator populations in a single year. We must consider the underlying reasons for this trend.

Values, it would seem, are as much of our common heritage as the land. The Great Work that Berry articulates so clearly, and which others like Rachel Carson, have made movements toward, expand our cultural view to recognize that "in reality there is a single integral community of the Earth that includes all its component members whether human or other than human” (The Great Work: Our Way into the Future). Our intellectual, emotional, and economic capacity for a sense of relatedness will be a central component in our response to a faltering food system and as we learn more about our launching pad, the organic movement. Kimbrell’s talk was practical and illuminating as he highlighted both the promise and limitations of the organic movement in confronting industrial agriculture—it cannot solve everything—but it is our first step out of the trench we’ve collectively dug. 

A recording of Andrew Kimbrell’s webinar, “Creating a New Food Future,” is available at https://vimeo.com/87359019

Posted in: Environmental Attitudes & BehaviorEnvironmental Law & Governance
Wednesday, February 12, 2014
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BMPs for Shale Gas Development. A Path Forward

By Josh Galperin, Associate Director

Note: This post was originally published here, by the Yale Climate and Energy Institute.

Handing down its decision in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court put Pennsylvania’s municipalities back in charge of regulating the land use impacts of shale gas development. Whether or not the court’s decision is sound, and whether or not municipal governance is desirable, substantial authority again lies with Pennsylvania’s municipalities, as it does in most other states. The pressing question, therefore, is what happens now.

Several months ago, researchers at the Yale Center for Environmental Law & Policy, and the Land Use Law Center at Pace Law School, with support from the Yale Climate and Energy Institute, began asking this very question, anticipating the state of governance that now prevails in Pennsylvania. Regardless of opinions on the pros and cons of “fracking”, it is undeniably a central part of America’s energy sector. Consequently it is important to understand fracking’s positive and negative local impacts and how local governments will capitalize on and manage those impacts.

Federal and state laws are well situated to address many risks of shale gas exploration, including, for example, climate impacts, some air and water pollution risks, contract terms, and royalties. However, federal and state laws do not cover other issues that are uniquely local in nature such as traffic, public safety, visual blight, reduction of property values, noise pollution, and the integrity of the land use plan. Likewise, the benefits of gas exploration—increased municipal revenue, economic development, and potential energy impacts, for instance—require local control to ensure that net benefits result.

Our research is finding interesting examples of local control of fracking.  Apart from the hundreds of localities that are banning the practice, others are regulating where it can be located within their borders and controlling uniquely local impacts. Peters Township, Pa., for example, adopted a zoning regulation that permits drilling on parcels 40 acres in size or larger and requires seismic testing prior to drilling. Longmont, Co. adopted an ordinance that excludes oil and gas operations in hazard areas and residential zoning districts, which includes planned unit development districts and mixed use zoning districts. A local law adopted in Oklahoma City, Ok. creates an oil and gas zone, defines permitted uses for the zone, requires permits for drilling, requires the drillers be insured, regulates the location of wells, has enforcement provisions, and regulates fencing, screening, landscaping, equipment, storage tanks, noise, and other nuisance effects. Finally, Santa Fe, N.M. established an oil and gas overlay district governing oil and gas exploration, drilling, production, transportation, abandonment, and remediation. It prohibits any oil or gas facility in the county as of right and requires the owner to apply for and obtain an Oil and Gas Overlay Zoning District Classification, a Special Use and Development Permit, Grading and Building Permit, and a Certificate of Completion, which may require other local, state, and federal development approvals.

In his dissenting opinion in the Robinson case, Justice Saylor wrote that natural gas is “essential the Commonwealth’s economic longevity and growth.” Conversely, Chief Justice Castille stated that removing local authority overfracking, and permitting the practice in any part of a community “compels exposure of otherwise protected areas to environmental and habitability costs associated with this particular industrial use: air, water, and soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building of facilities incongruous with the surrounding landscape.”

Our research is premised on the idea that fracking will proceed more safely, more efficiently, and with more actualization of benefits if local leaders are trained to confront the complexity, and address it in a way that best suits their constituents. To that end, Robinson is a positive development because it has returned authority to local governments. Both New York and Ohio are dealing with similar legal proceedings to determine the division of responsibility for local impacts. This state of play makes the empowerment and preparation of local decisionmakers even more important.  Regardless of one’s position on shale gas exploration and the best level of governmental control, there is no question that local leaders cannot promote benefits nor manage costs without preparation, and preparing local leaders is exactly what the Yale-Pace research team aims to do.

Our research began with a simple hypothesis that federal and state actions related to hydraulic fracturing would leave a local-governance gap. In December 2013 we hosted an expert workshop and panel in White Plains, New York. With representatives of industry, academics, environmental groups, and local government, we reached a consensus that this gap does, in fact, exist. With that assurance, we are preparing a second workshop in New Haven for March 28, 2014. At this workshop we will begin collecting best practices for governing fracking at the local level. Our expectation is that we can identify best practices that involve regulation, but also non-regulatory ideas that promote opening dialogues between communities and industry, establish community benefit agreements, or other flexible options that allow localities to identify and manage negative impacts while capturing the positive outcomes of new industry and a new energy option.

Based on the information we gather at these two expert events, we will develop model planning documents, non-regulatory templates, and ordinances to help us offer a robust training program to equip local leaders, and the professionals who serve them, to deal confidently with the growing role of hydraulic fracturing.

In his opinion in Robinson, Chief Justice Castille wrote: “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” On the other hand, Justice Eakin dissented, stating: “our unique shale resource can benefit all citizens; indeed the resource already has resurrected many local economies, though not without cost.” We agree with both of these perspectives, and the best way to rectify them is to train those who are most impacted to make informed decisions based on complete information.

Posted in: Environmental Law & GovernanceEnergy & Climate
Sunday, January 26, 2014
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Professor Beyranevand to Speak on GMOs, the Farm Bill, and Monsanto

By Guest Author, Avana Andrade, FES '15

On Tuesday January 28th, Professor Laurie Beyranevand will begin Part III of the Frontiers in Food and Agriculture webinar series with her talk, “The [In]significance of the Monsanto Rider to the Farm Bill.” Speakers in our third webinar topicwill focus on GMOs, or genetically modified organisms and intellectual property, and will explore how these topics relate to our broader conversation on transforming food systems in the US.

Professor Beyranevand is the Associate Director of the Center for Agriculture and Food Systems and an Associate Professor of Law at Vermont Law School, where she teaches Food Regulation and Policy, Public Law, Communications, Advocacy and Leadership, Interviews, Counseling and Negotiation, and Advanced Writing for Dispute Resolution.

Professor Beyranevand’s talk on Monsanto, a leading producer of genetically modified seeds, is driven by her research and scholarship, which focuses on the connections between food and health, and specifically considers issues arising from food safety and regulation. On Tuesday, January 28th, Beyranevand will address the “Monsanto Rider” to the 2013 Farm Bill, which would have extended legal protection to the companyin producing and distributing genetically modified seeds to farmers. Although the rider expired last year, it fanned the flames of an already heated nation-wide conversation about genetically engineered foods. Beyranevand will focus on the text of this controversial provision, its potential consequences, and its significance within the larger regulatory scheme that governs genetically modified foods in the US.

Her talk is particularly relevant given the controversy surrounding the 2013 Farm Bill as well as increasing public concern about the use of bio-engineered seedsand consumer’s potentially unwitting consumption of genetically modified food. Furthermore, the regulatory terrain is less than straightforwardsince there is no one regulatory agency governing biotechnology and since relevent laws were written well before biotechnology emerged. Therefore, Beyranevand’s webinar will be instrumental in clarifying the role of federal regulation in modern, “high-tech” agriculture.

To register for Professor Beyranevand’s talk please see the following link: https://www4.gotomeeting.com/register/458356783.

For more detailed information on each webinar see YCELP’s calendar of upcoming events: http://envirocenter.yale.edu/events.

To register for the rest of the webinar’s in Part III please see the following links:

Creating a New Food Future

Andrew Kimbrell, Executive Director of the Center for Food Safety

Wednesday, February 12, 2014 | 12:00 PM EST

Registration: https://www4.gotomeeting.com/register/650444167.

 

GMO Labeling Laws: Constitutional Considerations

Lauren Handel, counsel in the firm of Jason Foscolo LLP

Thursday, February 27, 2014 | 12:00 PM EST

Registration: https://www4.gotomeeting.com/register/804265159.

Posted in: Environmental Law & Governance
Monday, December 30, 2013
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The Fractured State of Shale Gas Development Regulation

By Guest Author, Eric Ellman, Comm. Dir., Yale Climate and Energy Institute
 
Five years into a prolonged recession the economic benefits of shale gas development are compelling.  American shale gas reserves have buoyed the U.S. economy, reduced reliance on foreign oil and helped reduce greenhouse gas emissions. In 2012 alone shale gas and tight oil put $74BB into state and federal coffers and created 2.1 million jobs.(1) A broad-based shift from coal to natural gas has had the unforeseen effect of allowing the United States to reduce its CO2 emissions to Kyoto Protocol levels without even being party to the convention.(2)
 
At the local level, however, the potential negatives associated with development are less clear.  Lacking that clarity, and without federal or state regulations to control the many adverse local impacts ranging from depleted groundwater to contamination, deteriorated roads and rising crime,(3) communities have responded the only way they know how, by passing moratoriums on development of the resource.  And because local ability to use police and zoning laws originates with the State, there is a constant fear that courts will preempt the local action, allowing development to proceed and disregarding local concerns.
 
[The recent] 12th annual Land Use and Sustainable Development conference at Pace Law School included a YCEI-sponsored panel discussion developed with Yale Center for Law and Environmental Policy (YCELP) students and staff.  YCELP identified 36 potential local impacts from gas shale development identified by communities around the nation not addressed by higher levels of government.  The list and the workshop were intended to help communities develop planning and regulatory practices that protect them while allowing safe development of what could be a critical bridge fuel that lets the world meet its energy needs while minimizing atmospheric build-up of carbon dioxide.
 
At a pre-panel workshop to discuss that challenge, conference organizer Professor John Nolon suggested an ideal outcome: a model ordinance that financially strapped communities could use as the basis for safe and reasonable regulation, protecting them from impacts that are beyond the scope of state and federal regulations.
 
“A model ordinance would have made my job a lot easier,” responded panelist Stephen Ross, County Attorney from Santa Fe, New Mexico, where residents had urged a moratorium to prohibit fracking in the scenic Galisteo Basis.  Now the framework for drilling in Santa Fe County is established, and both residents and drillers know what to expect.  For some, the new law is effectively the same as a ban:  The company whose plans to drill had prompted passage of the Santa Fe Land and Gas Amendment to the Santa Fe County Land Development Code chose to explore for oil and gas elsewhere. For others the law may create new opportunities.
 
Santa Fe was enjoying the benefit of a strong economy at the time of their skirmish over hydrocarbons.  That’s not the case in New York towns that could be the scene of a land rush if and when the state lifts its fracking moratorium.  “Many local governments have limited professional staff, few resources”, was a common refrain among participants.  Consequently, it’s easy to imagine small communities embracing fracking when they see it’s near-term benefits.  While it’s not a universal refrain, Dan Raimi, a researcher with Duke University’s Energy Initiative quotes a local official telling him, “I wish we had a well on every road because the roads are so much better.”
 
That echoes the experience of Joe Greenberg, co-founder with Todd Mitchell of Alta Resources, one of the first companies to find the sweet spots of key shales including the Marcellus and applied good engineering and hydraulic fracturing to develop them.  In Joe’s experience, it’s communities that don’t stand to benefit where opposition is strongest.  Those likely to benefit from the resource, and those in states like Oklahoma and Texas where drilling is part of life’s fabric, are least likely to have objections and most likely to have an efficient and centralized regulatory structure.
 
Others are less sanguine.  Cornell Professor Susan Christopherson cited her survey showing that 67% of New York residents had low to no confidence that New York State officials will protect the economic and social stability of their communities.(4)  Kate Hudson, Watershed Manager for River Keeper, a non-profit dedicated to safeguarding the Hudson River and its tributaries, is concerned about the nation’s distribution network for gas shale products.  Albany, New York has already become a major transshipment center for trains carrying North Dakota’s Bakken oil to refineries on the Eastern Seaboard.  Last December the Stenna Primorsk, an oil tanker carrying about the same 12,000,000 gallons of crude as the Exxon Valdez, ran aground en route to its destination of New Brunswick, Canada.  Thanks to the double-hull design that became a requirement after the Valdez spill, no oil escaped.  But, says Hudson, the accident revealed that despite the surge in tanker traffic no emergency management plan for responding to such an event on the Hudson currently exists.(5)
 
Panelist Jim Saiers, a Yale University hydrologist and expert on fracking offered the opinion that the most frequently vocalized concerns about water quality impacts from hydraulic fracturing can be addressed by appropriate regulations such as those conference organizers envision.  A bigger question, he suggested, relates to the potential escape of methane, an even more powerful greenhouse gas than CO2, during the drilling and production process.
 
A recent study published in the Proceedings of the National Academy of Sciences summarizing data from 12,700 atmospheric samples collected over the United States in 2007-08 found methane levels 1.5 times higher than previously assumed by the EPA.(6)  Levels over Texas and Oklahoma were up to 2.7 times higher with livestock and the oil and gas industry identified as primary contributors. Five years later, however, a joint study by the Environmental Defense Fund and the University of Texas indicates that companies following proposed new EPA “green completion” strategies reduce methane escape from natural gas wells by up to 99%.(7) 
 
Successful reduction of fugitive methane – critical to capitalizing on natural gas’s potential to satisfy energy demands with minimum contributions to greenhouse warming – is an example of how good regulations can reconcile the needs of the nation with local concerns.  With climate change an issue for every community, a comprehensive model ordinance to help regulate gas shale development might include measures to assure compliance with methane management too.
 
***
 
 
***
 
1.     America’s Unexpected Jobs Boom.  Daniel Yergin.  http://features.blogs.fortune.cnn.com/2013/09/05/energy-us-jobs/
 
2.     Rise in U.S. gas production fuels unexpected plunge in emissions. http://online.wsj.com/news/articles/SB10001424127887324763404578430751849503848.
 
3.     Controlling the local impacts of hydrofracking. Facilitated Discussion Outline. Yale Center for Law and Environmental Policy
 
4.     Confronting an uncertain future.  How US communities are responding to shale gas and oil development.  Susan Christopherson and Ned Righter.  National Agricultural and Rural Development Policy Center Brief 18, November 2013
 
5.     Kate Hudson, personal communication
 
6.     Emissions of methane in US exceed estimates study finds.  Michael Wines.  New York Times. November 11, 2013.
 
7.     Study delivers good, bad news on climate impacting methane gas. Lisa Song and Jim Harris.  Center for Public Integrity.  September 13, 2013.
Posted in: Environmental Law & GovernanceEnergy & Climate

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