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Environmental Law & Governance

Thursday, January 24, 2013
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The Supreme Court, Takings, and Environmental Protection

By Josh Galperin, Associate Director

 

20 years ago, along State Road 50 in Orange County, Florida, land developer Coy Koontz proposed to fill 3.7 acres of wetlands in order to build a commercial center. At the time, the local water management district agreed to permit the project if Mr. Koontz would agree to preserve the remaining 11 acres of wetlands on his property and, in order to further mitigate the wetlands he would fill, to contribute approximately $10,000 to improve a separate wetland preserve several miles away. Mr. Koontz refused this arrangement, as well as several others proposed by the district, and instead sued, claiming that the district’s refusal to issue him an unconditional permit constituted an impermissible government taking of his property without just compensation, in violation of the Fifth Amendment to the U.S. Constitution. 
 
Over the last two decades, despite Mr. Koontz’ death, this case found its way from the wetlands of central Florida to the United States Supreme Court, with Mr. Koontz’s son, Coy Koontz, Jr., taking over for his father.
 
The environmental implications of this particular case are clear: Wetlands, which are sometimes called the “kidneys” of watersheds for their water purification functions and which also provide important wildlife habitats, are an essential environmental resource and this case involves the question of when and how Mr. Koontz can destroy wetlands on his property. However, the really interesting aspects of this case are in the details of the legal theory.
 
I. The Takings Clause of the Fifth Amendment
 
Mr. Koontz claimed that by failing to issue him a development permit, the government had “taken” his property. Among other things, the Fifth Amendment to the United States Constitution says “nor shall private property be taken for public use, without just compensation.”  This means that the government may take private property from individuals on two conditions. First, the government may take the property only for a public use, such as a road, a school, or environmental protection. Second, when the government does take private property for public use, it must offer the property owner compensation for the land taken.
 
A. Taking by Eminent Domain
 
Over the years this constitutional clause has given rise to several distinct types of takings. Eminent domain is the most traditional means of taking private property for public use. With eminent domain, the government will go to a court and tell the court that it wants to take ownership of private land. As long as the purpose of the eminent domain is public and the compensation is fair, the court will transfer ownership from the private owner to the government. 
 
B. Taking by Regulation
 
A regulatory taking is an alternative method of taking private property. This occurs when the government does not plan or intend to take ownership of private property, as it does with eminent domain, but instead regulates the property owners’ use of his or her property to such an extent that the government is essentially forcing the property into public use. For example, where a state regulation prohibited a mining company from extracting any coal that was under a residential building because mining would cause the building to collapse, the Supreme Court ruled that there had been a regulatory taking. The Court found that the regulation prohibited the company from using part of its property and that the state, in an effort to protect private homes from coal mining, had gone “too far”. [1]   
 
A later Supreme Court case helped explain, but did not completely resolve, how to determine when a regulation goes too far. In this later case, the Court developed what is now called the Penn Central test, which says that whether there is a regulatory taking depends on: (1) the economic impact of the regulation; (2) the extent to which the regulation interferes with distinct, investment-backed expectations of the property owner; and (3) the character of the government action. [2]  Unfortunately, in the nearly 40 years since the Court laid out the Penn Central test, it is still unclear exactly how to interpret and apply the details.
 
Some regulatory takings, however, are easy to identify because they are categorical. That is, they involve much less balancing and judgment. When a government regulation forces a permanent invasion of property, no matter how small that invasion, it is a taking, as was the case when a regulation forced building owners to allow cable companies to run wire across their roofs. [3] Likewise, when a regulation completely removes any private economic benefit of property, that is a  “total taking” and the Constitution requires compensation. For example, a South Carolina law required a special permit to develop in a critical coastal area. When the government would not issue a permit to a beachfront property owner, the Supreme Court said that stopping development is permissible, but as long as the government requires the landowner to preserve his property for public environmental purposes, it must pay him just compensation. The court explained that by denying the permit, the government denied the landowner any economically beneficial use of his land. In other words, where a regulation causes property to have only a public benefit, and no benefit to the private landowner, there has been total taking. [4]  
 
C. Taking by Exaction
 
Finally, there is a category of taking called an exaction. An exaction occurs when the government conditions issuance of a development permit on the developer giving up some smaller piece of property. Where a homeowner wants to build a new beachfront house, but the government will only issue a permit if the homeowner allows pedestrians to cross his property; that is an exaction. It is a taking of the small piece of property across which the pedestrians will walk. [5]  And if a hardware store wants to expand its parking lot but the government will only issue a permit if the storeowner gives up a portion of her property for a bike path, that too is an exaction. It is a taking of the land that will become a bike path. [6] 
 
Not all permit conditions, however, are exactions. First, to be an exaction, such a condition must require the dedication of property to public use. Second, a permit condition is permissible and is not a taking if the condition is closely related to the harm that that the permitted action will cause. The condition must be related in both its nature and its size. For example, when the beachfront homeowner builds a new home, that development has nothing to do with pedestrian beach access, so the pedestrian crossing does not have what the Supreme Court calls an “essential nexus” with the new development. [7] In contrast, a storeowner expanding her parking lot, does have a connection with traffic and commuting, so a bike path across the property does have an essential nexus. However, according to the Court, the traffic impact of a few additional parking spots is insignificant and is not weighty enough to warrant the dedication of private property for a bike path. The Court calls this test one of “rough proportionality”; the impact of requiring the landowner to establish a bike path is not roughly proportional to the impacts of the parking lot.   
 
At first, because the case of Coy Koontz is about permit conditions, it appears to concern only this last category of takings: exactions. But in fact, the case raises questions about the broad spectrum of takings law. 
 
II. Takings in the Context of Koontz
 
A. Has There Been an Exaction?
 
For the sake of argument, the Supreme Court might take the facts of Mr. Koontz’s case and decide that there is an exaction. They would of course look at the requirement that Mr. Koontz dedicate his undeveloped wetlands for preservation and that he contribute money to the preservation of additional wetlands and the Court would have to agree that there is an essential nexus between wetland destruction and wetlands preservation. However, they might decide that the harm done by filling a few acres of wetlands is not roughly proportional to the requirement of preserving and paying for so many additional acres.  Under this reasoning the Court could decide that there has been an exaction and that compensation is due 
 
In the exaction cases described above, the owners sued the government after the government issued permits requiring dedication of the walking path beside the beachfront home and the bike path next to the hardware store. But in this case Koontz sued the government for denying his permit. Because the government never issued a permit, there was no requirement forcing Koontz to do anything with his money or wetlands. The government never forced Koontz to dedicate his property to the public good. Thus, as Mr. Koontz sues, seeking compensation for the exactions, the Court cannot ignore the fact that there never was an exaction, the government cannot compensate for something it has not taken, or for a requirement that does not exist.
 
When the Supreme Court listened to arguments in this case Justice Sotomayor listened to Koontz’s explanation of this case and found herself wondering, “Why are we even in this case? Why are we here?” Justice Scalia, often the greatest champion of strict property rights, expressed the same concern, pointing out that the government never took anything in this case. Given the skepticism of the Court, it seems that Koontz’s exaction theory may fail. 
 
But perhaps other takings theories could rescue this case. Realistically, Mr. Koontz’s presented his case to the Supreme Court only on the exaction argument, so it is doubtful that the Court would address other theories. However, in the past decades and already this term, the Court has been inclined to rule in favor of complaining landowners, so an exploration of Koontz’s other constitutional and policy options is worthwhile.
 
B. Other Takings Theories
 
Mr. Koontz might argue that there has been a regulatory taking insofar as the government has denied Mr. Koontz all use of his land for commercial development. This argument has previously prevailed before the Court, as was the case, mentioned above, of the South Carolina landowner who was denied a permit to build on his beachfront property. However, in that case the Supreme Court considered the permit denial to be a regulatory taking because it left the landowner without any reasonably beneficial economic use of his land. That simply is not the case for Mr. Koontz. Coy Koontz can still build an economically significant commercial development on his property. Admittedly, Mr. Koontz can only build this development if he is also willing to preserve and improve various wetlands at what may be a non-negligible cost to him. But the economic opportunity to develop the parcel even with the proposed restrictions is also very real, and an argument that there has been a complete loss of value rather than only a partial reduction in value is unsound. 
 
Mr. Koontz might then argue that there has been a regulatory taking under the three-part Penn Central test. This argument also faces an uphill battle. The Court might find, for example, that when the government denies a permit because the landowner is not willing to accept conditions, that the “character of the government action”, specifically, the possibly extortionate conditions, should lead to a regulatory taking and compensation.  On the other hand, the conditions probably do not have a major economic impact compared to the value of the proposed development, nor do the conditions interfere with Koontz’s investment-backed expectations because he still stands to make a significant profit on the development, regardless of the conditions. More importantly, the Supreme Court has never found a regulatory taking under the Penn Central test. 
 
Koontz’s final argument might then fall from a constitutional argument to a policy argument. It is unfair, he might argue, that he must choose between what he sees as the lesser of two evils. He can refuse, as he did, to accept the permit conditions and the government will deny the permit, but then he cannot win on the constitutional merits. If he wants to succeed on a constitutional exactions argument he will have to concede to a permit with conditions he does not like and then sue the government as the beachfront homeowner or the hardware store owner did.  Koontz’s policy argument would be that he should not have to wait for an unconstitutional act in order to get his justice. But this argument should also fail because it sets up a false dichotomy.  
 
Mr. Koontz would want the court to sympathize with his untenable situation. Either he accepts an unconstitutional permit or he stands up for his principal but is then prohibited from getting justice. The flaw in this argument is that even if there were an exaction in this case, an exaction is not unconstitutional. Takings in general are not unconstitutional; they merely require compensation. This is the very purpose of the Takings Clause of the Fifth Amendment. The government may take property, whether by eminent domain, regulatory takings or exactions, as long as the government pays compensation. If Mr. Koontz were faced with a permit that denied his freedom of speech or religion, then his choice would raise constitutional sympathies. When his choice is between making a lot of money or making a lot of money and spending a little to protect the environment, the Constitution does not prohibit permit conditions.
 
III. Takings and Environmental Protection
 
Through the Takings Clause, the United States Constitution strikes a balance between a severe and inflexible purity of private property and the logical inevitability that in democratic society property owners must, to some degree, consent to limited governmental interference.  Although this is the consensus embodied in the Fifth Amendment it is not welcome to strict property rights advocates. 
 
The alternative is not a welcome to environmental protection advocates. Whether it is wetlands or coalmines, flood protection or toxic remediation, environmental safeguards frequently bear on the private use of land. If the Court is to further expand the scope of the Takings Clause, the requirement of compensation could make environmental protection impractically expensive. Koontz v. St. Johns River Water Management District presents the Court with an opportunity to reject a further broadening of the scope of takings law and to avoid putting environmental safeguards—already in political jeopardy—in greater legal and economic jeopardy.  
 
_________________________________________________________________
 [1] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
 [2] Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
 [3] Loretto v. Teleprompter Manhattan CATV Corp., 548 U.S. 419 (1982).
 [4] Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
 [5] Nollan v. California Coastal Commission, 482 U.S. 825 (1987).
 [6] Dolan v. City of Tigard, 512 U.S. 374 (1994).
 [7] Nollan v. California Coastal Commission, 482 U.S. 825 (1987).
 [8] Dolan v. City of Tigard, 512 U.S. 374 (1994).
 
Posted in: Environmental Law & Governance
Tuesday, January 22, 2013
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New Report on Climate Legislation

By Guest Author, Nathaniel Loewentheil, Yale Law School '13

 

The following is a guest post by Yale Law Student Nathaniel Loewentheil. Nathaniel recently authored a report for the Institution for Social and Policy Studies, which this post summarizes. You can find the full report here.

Two new reports out from NASA and the National Oceanic and Atmospheric Administration add to the ponderous weight of evidence suggesting that our climate is changing more rapidly than we had anticipated – and with greater consequences.

This makes for reconciling two difficult truths: first, that climate change is already affecting all of our lives, and second, that our national political institutions are doing nothing to address it. They’re not now, and they won’t be for the next few years. The environmental movement is almost completely sidelined by a recalcitrant and increasingly conservative Republican Party and, we must admit, a public concerned more with daily economic necessities than long-term ecological challenges. When that movement will again be able to capture public attention is difficult to say.

In the meantime, the movement is biding its time and plotting strategy for the future. Before it looks forward, however, it must necessarily look back at the most recent climate campaign: the failed push for a cap-and-trade bill in 2009 and 2010.

In a new report out this week from Yale’s Institution for Social and Policy Studies, I  take a look at that climate campaign using historical trends in political parties, voting records, natural resource distribution and a variety of other indicators.

The report has two key findings. First, and unsurprisingly, there were a variety of forces that together blocked cap-and-trade legislation, from energy interests and political geography to polarization and the recession.

But, I believe, defeat was not inevitable.

To see this, all we have to do is look at the Affordable Care Act of 2010. The fact that a major healthcare reform bill got through Congress suggests that the climate movement might have succeeded, recession and the Tea Party notwithstanding.

Comparing the two campaigns, a key difference emerges. The healthcare campaign succeeded by combining a sophisticated insider strategy with large-scale organizing. The climate campaign, in sharp contrast, had an insider strategy only. Through the US Climate Action Partnership, organizations like Environmental Defense Fund and Natural Resource Defense Council built an impressive coalition of NGOs and corporations and laid out the policy framework ultimately embedded in the Waxman-Markey bill. But the campaign didn’t build a grassroots network or attempt to win over public opinion. In this, it erred dramatically.

I also looked back at the history of environmental policymaking, from the Wilderness Act of 1964 up through the Superfund Act of the late 1980s. In case after case, the same lesson was clear: major environmental legislation can only succeed when an organized movement makes demands and the public voices its approval. Lacking both street power and endorsement by the polls, the climate campaign was doomed to a slow death in the Senate.

The bright side is that a careful analysis of the failure of the climate campaign provides a clear lesson for the future. The movement needs to begin investing in local and state organizations that can build a strong, enduring network of activists ready to spring into action the next time a realistic climate bill is on the table. Organizing, of course, is built around action – and now is a good moment to be running campaigns at the municipal and state level for energy efficiency measures and tax breaks for green technology.

But that’s not enough. The movement also needs to begin shifting public opinion. And to that end, we need a new generation of journalists who, like Rachel Carson, can capture the hearts of Americans, not just their minds.

Read the full report here.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, January 02, 2013
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Wearing Two Hats: Reflections on the role of small islands at COP 18 in Doha

By Guest Author, Lia Nicholson, Yale F&ES '14

 

Doha, the capital of Qatar, is a glamorous construction – built entirely over the last 50 years – with an extravagant skyline where desert dunes meet the Persian Gulf. Attending the world’s biggest climate meeting there, the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), was a surreal experience. The glamor of the convention center, the deference with which our hosts treated the 9,000 COP participants, and the adrenaline needed to keep up with the chaotic schedule distracted me from the reality of the situation: we were convened to negotiate an existential threat.

With support from the Yale Center for Environmental Law and Policy (YCELP), I had the good fortune of attending the convention and I did it wearing two hats. The objectives of each hat were even somewhat contradictory in nature, which, in the end, reflected my conflicting sentiments toward the multilateral climate negotiations and particularly the role of small island states.

I am enrolled in an environmental protection clinic at Yale Law School, and I work with Islands First, a New York-based non-profit organization with a small staff and a mammoth objective: to build the capacity of the Alliance of Small Island States (AOSIS), one of the groups most vulnerable to climate change. A conundrum of the negotiation process is that the most vulnerable countries generally have the least capacity to influence the negotiations. Small island countries, for example, may arrive with a delegation of six while the United States arrives with a delegation of 75. The diplomatic schedule is as demanding as it is confounding with plenaries, informals, informal informals, and drafting groups occurring simultaneously in multiple tracks, small delegations struggle to leverage their voice. Islands First helps to remediate this discrepancy by coordinating extra hands and interns such as myself to cover AOSIS priority meetings and provide research as needed. By strengthening representation, Islands First strives to bring about meaningful environmental policy reform.

In addition to my role with Islands First, I was at COP to organize an event that explored alternative routes to reducing greenhouse gas emissions, culminating a semester of research by students in the Yale Law School course, “Climate Change and the International Court of Justice”. The Ambassadors for Responsibility on Climate Change, or ARC, in 2011 began an initiative to request an advisory opinion from the International Court of Justice (ICJ). The initiative sought a judicial opinion to define a state’s responsibility to reduce harmful greenhouse gas emissions based on established international legal concepts, including the precautionary principle and the prevention of transboundary harm (for an explanation of these legal concepts, please see Christophe Schwarte’s presentation and the ICJ summary brochure).

The event featured presentations on this subject from four diverse panelists (bios provided below). ARC member Ambassador Lima of Cape Verde brought a humanitarian vision that emphasized, “We are all neighbors with joined doors” as a reminder to value solidarity. The Ambassador referenced the extreme vulnerability of small islands and least developed countries as constituting a right to ask the ICJ for an advisory opinion on state responsibility to reduce emissions.

Attorney Christophe Schwarte, executive director of the Legal Response Initiative (LRI), presented an expert’s technical evaluation of the initiative. His critical appraisal recognized that an ICJ advisory opinion is not the “silver bullet” to reducing emissions. However, the presentation’s message was that the initiative passes the legal litmus test for an audience before the ICJ. Schwarte concluded that the action would have important benefits, such as increasing public awareness and responsibility, activating political pressure, and establishing “building blocks” for principles of international environmental law, particularly in relation to the atmosphere.

For Professor Michael Dorsey, the ICJ initiative embodies proactive action to reinvigorate the “low-intensity, politically possible, morally bankrupt conversations” of climate negotiations. This revision of the negotiation process could be achieved through an ICJ opinion that, if favorable, could create a paradigm shift towards a new international norm against greenhouse gases.

Yale School of Forestry & Environmental Studies’ student Dustin Schinn explained why an advisory opinion would be in the interest of all nations, including the biggest polluters and particularly the United States. An advisory opinion, Dustin explained, would reinforce the rule of law in responding to the international threat of climate change, and in the past the U.S. has been a proponent of such interventions. Furthermore, the economic costs of inactions in addition to the threat of climate change to international security and by extension U.S. national interest call for timely and effective action.

The four diverse perspectives – humanitarian, activist, student, and legal expert – resulted in a thought-provoking dialogue, evidenced in the post-presentation enthusiasm where the audience went to meet and greet the panelists. The event was a great success, and an encouraging symbol of the growing interest in the initiative, for which YCELP and Yale Law School are providing critical momentum.

Over the last twenty years, COP accomplishments in qualitative terms are at best modest compared to the urgency and scale of action required to prevent warming of a 3- to 5-degree magnitude. The plight of small islands continues to be largely overlooked, despite the efforts of groups like Islands First. I ponder that perhaps by attending the COP, these vulnerable island states are not only distracting from other efforts, but they are supporting a process in which a worthwhile outcome is politically infeasible. We might, therefore, ask: would islands be better served by not participating in the COP at all and focusing attention elsewhere? And within the negotiations, would their abstention be louder than their input?

Ambassador Stuart Beck of Palau, a small island in the Pacific, is an informed objector to the process. I can’t help but walk away from the 18th COP admiring the Ambassador’s decision, given my own growing feeling that the negotiation outcomes are pre-ordained by the specific instructions assigned to the negotiators from their country leaders back home. If this is truly the case, then through participation alone small islands are validating a broken process. Their validation of the negotiations is important because their sheer numbers help make the COP a democratic and representative process – what deficits there may be in size and resources, small islands make up for in numbers, as AOSIS represents 20 percent of total UN membership. Furthermore, small islands command a moral authority in the negotiations, which stems from extreme vulnerability to the issue at hand. This moral high ground is leveraged throughout the negotiation process through passionate interventions – for example, in Doha, the Philippines appealed to negotiators after their country was struck by a devastating typhoon during the COP.

By abstaining from the negotiations, small islands would send a very clear signal to the international community, that the negotiations have failed to reduce emissions in a timely fashion to prevent severe, sustained, and detrimental impacts to small island nations. Scientific research supports this statement, as the fourth report by the Intergovernmental Panel on Climate Change (IPCC) identified a global peaking year of 2015 in order to mitigate the worst of the effects for island states. Proactive and creative alternatives, such as the ICJ advisory opinion, will become increasingly viable as the COP negotiations fail to deliver a meaningful reduction in emissions year after year. Given their vulnerable position, it is likely that small island states, and their sympathizers and supporters, will have to pioneer a pathway forward.

 

Biographical information for the moderator and four speakers on the ICJ panel

Moderator: John Foran

Dr. John Foran is Professor of Sociology and Environmental Studies at the University of California, Santa Barbara, and co-Director of the International Institute of Climate Action and Theory, or iicat.at.

Ambassador Antonio Lima

Ambassador Antonio Pedro Monteiro Lima is the Permanent Representative of Cape Verde to the United Nations.  Prior to starting his current appointment in 2007, Ambassador Lima was the Political and Diplomatic Adviser to the President, a post he held since August 2001, while serving concurrently as the Head of State’s Permanent Representative to the International Organization of La Francophonie and Chairman of the National Francophonie Committee. From January 1999 to June 2001, he was stationed in Lome, Togo, as Director of the Communications, Compensation, and Development Fund of the Economic Community of West African States (ECOWAS).  He was the Fund’s Secretary-General from June 1992 to December 1998.  He was Secretary of State for External Affairs and Emigration from 1990 to 1991, and served as Director-General for Political, Economic and Cultural Affairs in the Ministry of External Affairs between 1988 and 1990. From 1985 to 1987 he was the Diplomatic Adviser to the Presidency.

Christophe Schwarte

Attorney Christophe Schwarte is the Executive Director of the Legal Response Initiative (LRI) - a network of lawyers that provides free legal advice to developing countries and observer organisations in connection with the climate negotiations. Before joining the Legal Response Initiative, Christophe worked as a senior lawyer at the Foundation for International Environmental Law and Development (FIELD) and served with the International Tribunal for the Law of the Sea for over six years. Christophe is a qualified lawyer with over 12 years of practical experience in different arenas of international environmental law. He holds an LLM from the School of Oriental and African Studies and is a member of the International Law Association's Committee on the Legal Principles related to Climate Change.

Michael Dorsey

Dr. Michael K. Dorsey is Visiting Fellow and Professor of Environmental Studies in Wesleyan University’s College of the Environment and serves as a Director on the Sierra Club’s National Board. From 2010 to 2012, Michael was the Director of Dartmouth College’s Climate Justice Research Project. For more than two decades Michael Dorsey has provided strategic guidance and advice to governments, foundations, firms, and many others on the interplay of multilateral environmental, climate, and biodiversity policy, including for the Clinton administration. He was a member of Senator Barack Obama’s energy and environment Presidential campaign team, and in 2010, Lisa Jackson, the head of the US Environmental Protection Agency, appointed Michael to her National Advisory Committee.  Professor Dorsey’s highly cited work seeks to understand how institutional and organizational behavior explain and inform efforts to manage the environment and to effect a just transition to sustainable development.

Dustin Schinn

Dustin Schinn is a second year Master’s student at the Yale School of Forestry & Environmental Studies where he focuses on the economics, international policy and governance of climate change.  Previous to that, he conducted research in the field of physical environmental sciences at the Potsdam Institute for Climate Impact Research, the Northern Rivers Institute, and the Smithsonian Tropical Research Institute.  He became especially interested in sustainable development and climate change through his recent internships at the Permanent Mission of Germany to the United Nations and at the Global Environment Facility.  For more information please refer to http://environment.yale.edu/profile/dustin-schinn.

Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, December 17, 2012
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Germany Hosts Sustainable Energy High-Level Ministerial Event with China and Others at Doha

By Guest Author, Angel Hsu, Project Director, Yale Center for Environmental Law & Policy

This post originally appeared on ChinaFAQs.

Although major greenhouse-gas emitting countries were criticized at the latest round of climate negotiations in Doha for failing to show enough ambition, an event held during the second week highlighted leadership from Germany, China, Morocco, and South Africa on clean and renewable energy. Hosted by Peter Altmaier, Federal Environment Minister of Germany, and moderated by the President of the World Resources Institute, Andrew Steer, the panel also included Xie Zhenhua, Vice-Chair of China’s NDRC, Nandi Mayathula Khoza, Minister of Agriculture of South Africa’s Gauteng province, and Fouad Douiri, Morocco’s Energy and Environment Minister.

At first glance, the mix of countries featured at the high-level event is both surprising and unsurprising. Germany is known for being a global leader in renewable energy. Last year it reduced CO2 emissions 2.4 percent from 2010 levels, and this year boosted the amount of electricity generated from renewable sources from 20 to 25 percent in the first six months. The move away from nuclear power generation following the Fukushima-Daichi disaster has certainly accelerated Germany’s push for having a greater share of its electricity generated from renewable sources; however, this impetus has been matched by leadership from senior officials to maintain Germany’s status as a clean-energy front-runner.

“We organized this event to explain that we are not alone in the universe,” Minister Altmaier said. “What is not so well-known is that many countries around the world have similar efforts and ideas and a lot has been achieved over the last couple of years.”

China discusses achievements, challenges of equitable low-carbon domestic growth

Included in this group of countries is China, which opened the side event with prominent mention of its recent achievements with respect to increasing consumption of non-fossil energy. Minister Xie touted the rise of non-fossil sources in China’s energy consumption to 8.1 percent in 2011 and 27.7 percent of installed power generating capacity using non-fossil sources, among other figures. While Germany may surpass China in terms of installed solar capacity, China led the world last year in constructing on-grid wind power capacity, with an increase of 16 million kW and generating 80 billion kWh. Many of these statistics came from China’s recent Climate Change White Paper, which was released in advance of the Doha meetings.

Minister Xie also mentioned the development of low-carbon growth models in five provinces and eight cities across China, which he stressed is challenging given the “uneven economic development” amongst provinces. He even referenced the application of the principle of Common but Differentiated Responsibilities to allocate differential low-carbon targets to these various models – a comment that brought some levity to one of the most contentious issues between developing and developed countries in Doha.

Morocco designs to become net exporter of clean energy

Perhaps the most surprising case of the evening came from Morocco’s Minister Douiri, who announced that his country is striving to become a net exporter of clean energy. This goal is challenging, considering Morocco currently spends about US$11 million (11 percent of the country’s GDP) to import around 95 percent of its primary energy. From an energy strategy issued in 2009, Morocco’s goal is to have 42 percent of its installed generation capacity by 2020 come from renewable sources. 2,000 megawatts will come from solar; 2,000 megawatts from wind, and more than 2,000 megawatts from hydro. Minister Douiri expects that they will be able to avoid 10 million tonnes of CO2. To place these goals into perspective, in 2009 only 4.9 percent of its total energy supply was renewable.

While Minister Douiri did not provide full details as to how the country aims to achieve these goals, he did mention strong support from E.U. partners France and Germany, as well as integration into regional markets that will allow Morocco to export its energy to cover some of the costs. Such efforts were praised by WRI President Andrew Steer, who said that Morocco’s clean energy generation costs are 10 cents per kWh less than what was being predicted a year ago.

“You’re driving down costs, generating 60,000 jobs, and on the way to becoming a major exporter of clean energy,” Steer added.

South Africa challenges itself to reduce reliance on coal

Such a model – if successful – could have lessons for South Africa, which arguably has the most challenges ahead in terms of sustainable energy generation. South Africa has the 14th-highest GHG emissions in the world and one of the most energy-intensive economies due its reliance on mining and minerals processing, as well as coal-intensive electricity generation. According to the International Energy Association, over 90 percent of the South African electricity supply comes from coal, compared to around 65 percent in China and 42 percent in the United States. Therefore, South Africa has more ground to cover, although Minister Khoza did state the country’s goal for 42 percent renewable electricity generation by 2030, reducing the coal-based portion to 15 percent. A mix of public and private funds will help to achieve goals of installing 1 million solar water heaters by 2015 (to date, over 300,000 have been installed); as well as the Khi Solar One Project, which will generate 50 MW of power and create 1,400 jobs.

While South Africa’s commitment was palpable through the words of Minister Khoza and the fact the country hosted last year’s climate summit in Durban, there is no doubt that it will be difficult for the country to meet these goals. In the 2012 Environmental Performance Index, South Africa ranked last amongst countries in Sub-Saharan Africa, in large part due to its poor performance on climate change indicators and renewable electricity generation. Unemployment rates in the country are also at a staggering 25 percent, which is why Morocco’s model of clean energy job creation is particularly relevant for South Africa.

Meeting challenges through teamwork - a Renewable Energy Club?

These evident linkages between the countries present at the event are the foundation for a “renewable energy club,” as Minister Altmaeir dubbed it in the conclusion of his remarks.

“At least 118 countries worldwide have national targets for renewables,” he said. But there are very real challenges to achieving these goals, including how to reduce the costs of integration and installation, how to make investments in renewable energy more attractive worldwide, and how to give a competitive advantage to countries in a “club” for countries like those present on the panel that are proactive and demonstrate leadership. Such a club could foster much-needed alliances in “political and financial power,” in Altmaeir’s words, as well as sharing of concrete tools and strategies. His vision would include annual meetings of club member countries, in parallel fashion to the UN climate negotiations, which are often mired in nuanced technical and legal discussions, as was the case in Doha.

It was refreshing to see a diverse range of countries who are at various points in their sustainable energy trajectories discuss in Doha not only their current actions, but also future plans to tackle climate change through renewable energy. While the Doha talks were not expected to and did not result in much game-changing action, perhaps this idea of a “renewable energy club” for countries will gain traction and be a viable platform by which major emitters can raise the much-needed ambition to combat climate change.

“This event illustrates a potentially game-changing trend: leaders who are impatient with the formal processes forming alliances with others who want to act rather than talk,” reflected Steer. “This is a hugely encouraging development, and one that can in turn, by demonstrating that success is possible, encourage more ambition in the formal negotiating process.”

Posted in: Environmental Law & Governance
Tuesday, December 11, 2012
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Webinar Recap: Regulating Shale Gas Development

By Guest Author, Nora Hawkins, Yale F&ES '14

On December 5, as part of the Yale Center for Environmental Law and Policy’s ongoing webinar series on Emerging Issues in Shale Gas Development, Florida State Law Professor Hannah Wiseman provided a comprehensive overview of the current legal regimes governing shale gas development, including state and federal statutes, local zoning, agency directives, and the common law.

While shale gas is currently regulated at each of these levels, Professor Wiseman emphasized that states are the central hub in this process because states typically issue the primary permits required to develop shale resources. A significant issue, which Professor Wiseman referred to as the “elephant in the room,” is whether the federal government or the states should take the lead in regulating hydraulic fracturing. (And what the role of local governments should be.) Ultimately, Professor Wiseman suggested that states should continue to play a major role, but she believes that efforts are needed to improve and, to at least some extent, standardize current state regulations.

In her presentation, Professor Wiseman addressed regulatory issues at each phase of the shale gas development process, including regulation of seismic testing, development of access roads and drilling sites, drilling and casing of wells, storage and disposal of drilling waste, water withdrawal, hydraulic fracturing, flowback water, and gas venting and flaring.

This blog focuses on a few regulatory issues that Professor Wiseman discussed in the context of well drilling and casing and hydraulic fracturing. Professor Wiseman’s presentation slides and a recording of her full presentation on "Understanding and Improving Regulation of Shale Gas Development" are available here and here, respectively.

Regulating at the Drilling Stage: Well Casings and Groundwater Contamination

Preventing groundwater contamination is a high priority in shale gas regulation and requires, among other things, effective standards for well casings. In fact, Professor Wiseman noted that one of the most contentious issues that has arisen in shale gas development—the potential for methane contamination of drinking water—is primarily an issue of well drilling and casing rather than of hydraulic fracturing. (Though the term hydraulic fracturing or “fracking” is sometimes used imprecisely to refer to all stages of shale gas development, hydraulic fracturing is but one stage in the process.)

In regulating groundwater pollution from faulty well casings, Professor Wiseman noted that it is crucial to obtain baseline data. If shale gas wells are improperly drilled and cased, groundwater can be contaminated by methane and other pollutants, such as iron, manganese, and dissolved ethane. However, because some groundwater sources have naturally elevated levels of these substances, elevated levels alone are not conclusive evidence of well-related pollution. To address this issue, several states have begun to require water testing both pre- and post-drilling to verify whether well-related contamination of groundwater has occurred.

Due to the so-called “Halliburton Loophole,” which exempts hydraulic fracturing from the federal Safe Drinking Water Act (exept where drillers inject diesel fuel), states are now almost entirely responsible for addressing drilling and fracturing-related groundwater pollution, such as by ensuring that wells are properly cased and cemented. Some states have filled this gap by regulating the types of casing materials that can be used, requiring bond logs, specifying minimum pressures that casings must be able to withstand, setting lengths of time that casings must set before wells can be used, and establishing minimum depths that casings must extend below groundwater.

One regulatory dilemma that Professor Wiseman highlighted is that many states currently apply only narrative standards to shale gas activities. While narrative standards may, on their face, require that certain environmental goals be met (e.g., no leakage from well casings), such standards do not prescribe specific measures (or technologies) to meet their goals, and this lack of implementation guidance can sometimes be problematic for regulators, who must issue permits and assess compliance.

Regulating at the Fracturing Stage: Surface Spills, Air Pollution, and Blowouts

At the hydraulic fracturing stage, one issue that has received considerable public attention is whether or not operators should be required to disclose the chemicals they use during the fracturing process. Professor Wiseman noted that while most states require some type of information disclosure, many do not require full disclosure if drillers consider the chemicals that they use to be “trade secrets.” These limitations create uncertainty about the composition of fracturing fluids, which raises concerns about the full risks of groundwater contamination. Lack of disclosure may also hamper efforts to address surface spills when they occur.

Surface spills are an inherent risk during both the drilling and fracturing phases of shale gas development due to the machinery and chemicals used and stored at the drilling site and the contaminated flowback water produced after fracturing. A variety of spill response laws apply here, including, Professor Wiseman noted, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) which kicks in if sufficient levels of non-diesel and non-gas contaminants are spilled. But effective prevention of surface spills and, when spills do occur, limitation of their harms also requires pre-drilling measures, such as mandated drilling setbacks from sensitive natural resources. As a precursor to development, some states also require development of spill prevention and control plans and/or mandate that operators obtain environmental pollution coverage in the form of insurance or bonds.

In addition to water quality concerns, well fracturing and subsequent gas production can lead to issues of air pollution. As recently discussed on this blog, states have adopted air quality regulations of varying stringencies. At the federal level, the U.S. EPA also recently issued regulations under the Clean Air Act, which will limit the release of volatile organic compounds.

Two relatively rare but critical risks during the fracturing stage are well explosions and high-pressure emissions of fluids from equipment accidently left open at the surface. To avoid such problems, many states require installation of blowout equipment at well sites, which allows pressure to be controlled and released when necessary.

To learn more about these and other shale gas regulatory issues, you can download Professor Wiseman’s presentation slides here, and view the recording of her webinar here:

Understanding and Improving Regulation of Shale Gas DevelopmentNew Project from YCELP on Vimeo.

Posted in: Environmental Law & GovernanceEnergy & Climate
Tuesday, December 04, 2012
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How To Survive Climate Change and Get Rich While Doing It…

By Josh Galperin, Associate Director

 

...Or

What Climate Change Can Do About Property Law*

*With Apologies to Professor Doug Kysar

Harvey and Phyllis Karan are lucky that their beachfront home on the Jersey shore suffered little damage from Hurricane Sandy. Not long before Sandy hit, the Army Corps of Engineers completed a dune replenishment project, raising a dune in front of their home and providing protection from the storm surges that devastated much of the coast only one month ago.

In its aftermath, Sandy has sparked discussions about how communities along the Atlantic coast can prepare for the more frequent and more intense storms that may result from climate change. Experts have recommended constructing a sea wall to protect New York City at a cost of perhaps $6 billion, for example. Dune replenishment is a more modest effort to reduce the impacts of major storms.

But, the Karans’ situation demonstrates that even modest efforts to prepare for climate change may be no match for the nuances of property law. 

When the Army Corps raised the dunes in front of their home, the Karans lost some of their spectacular view of the Atlantic and a small strip of land on which the new dune was constructed. Because this was a government project on private land, the government was required to pay the Karans compensation for the negative impact that the dune raising had on their property. The government offered $300 the Karans demanded $500,000.

Back when this disagreement arose, nobody predicted that Sandy would cause the devastation that it did, though all of the parties knew that improved dunes would protect beachfront property. To that end, the government argued that any harm to the Karans should be balanced against any benefit (i.e., storm protection) that they would get from the more robust dunes.  Regrettably, property law does not account for even the house-saving benefits that the government provided the Karans.

Courts recognize two types of benefits that a landowner might receive from a government project like dune replenishment: (1) general benefits and (2) specific benefits. General benefits are those that the public at-large can enjoy. Specific benefits are those that are unique to only a single landowner. Specific benefits must be unique both in their degree and their nature.

For example, if the government builds a road across a landowner’s property, the public at-large may benefit from faster travel. The landowner herself, who is now very close to the new road, might benefit even more from quick access due to her proximity, but the nature of her benefit—faster travel—is the same for this landowner, her neighbors, and other travellers. In this example, the landowner’s added benefit is unique in degree but not in nature, and is thus a general rather than a specific benefit. Under property law, the government cannot subtract the landowner’s general benefit from the compensation it owes her for taking a portion of her property. On the other hand, if the government needed to drain a swamp to build the road, and by draining the swamp it made the landowner’s remaining land newly arable, then that landowner would also experience aspecific benefit, unique in its nature only to her. In this case the government could subtract the specific benefit of the new farmland from its compensation payment.

In the case of the Karans, the couple clearly benefitted from the dune project, which protected their home from Sandy’s damage. But protecting beachfront property from storm damage was exactly the general benefit that the government intended. Even if the Karans received a larger benefit than homes further inland, that difference is merely a difference of degree; it is not a specific benefit of a different nature.

When Sandy ravaged the Jersey coast, the Karans undoubtedly enjoyed an immense benefit insofar as their home is still standing and largely undamaged, but that is an advantage that the courts could not consider in this case. As such, the Karans benefit twice and get a windfall. The government has saved the Karans’ home and (if a pending jury award is upheld by the New Jersey Supreme Court), it must also pay the Karans hundreds of thousands of dollars for the privilege of saving their home. 

Looking at the Karans alone, this legal doctrine seems unfair and no doubt terribly frustrating to those flooded by Sandy’s water rather than the govnerment’s money.

Looking at the problem more broadly, the limitations of property law could pose an insurmountably costly barrier to large-scale climate adaptation. At the scale of this particular dune replenishment project alone, 190 homeowners, including the Karans, received newly replenished dunes. If each of these homeowners received $375,000, the amount awarded to the Karans, the local government would need to pay an extra $71 millionover and above the millions of dollars needed to carry out the engineering and completion of the dune project itself. On the scale of the entire Atlantic and Gulf coasts (just two of many vulnerable areas), financing adaptation could quickly become untenable under the strictures of property law.

Yale Law Professor (and Interim Director of the Yale Center for Environmental Law and Policy) Doug Kysar recently authored an article titled “What Climate Change Can Do About Tort Law,” in which he argued that tort law, which so far has failed to address the massive threat of climate change, must evolve to account for the human demand for a legal framework and venue that addresses climate harms.

Before Hurricane Sandy, the Karans’ story may not have seemed so astonishing. But now, post Sandy, with the threat of climate-instigated property destruction more obvious than ever, the limits of property law have been laid bare. The legal doctrine that entitles this couple to hundreds of thousands of dollars seems increasingly inappropriate in a changing climate world.

With the Karans’ legal case now in front of the New Jersey Supreme Court, it may be time for jurists to think about what climate change can do about property law. 

 

**UPDATE**

On December 11, 2012 CBS Evening News ran the following piece on the dune projects along the New Jersey coast.

Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, December 03, 2012
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Emerging Issues in Shale Gas Development: Protecting Air Quality

By Guest Author, Gabe Scheffler, Yale Law School '14

This post was co-written with YCELP Fellow Bruce Ho.

On Wednesday, December 5, from 3-4pm EST, Florida State University Law Professor Hannah Wiseman will present a webinar on “Understanding and Improving Regulation of Shale Gas Development” as part of the Yale Center for Environmental Law and Policy’s ongoing Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.”

Please click here to register to participate in this free online event.

As a lead-in to Professor Wiseman’s webinar, this blog focuses on one key area of environmental regulation—the regulation of air pollution from shale gas development—at both the state and federal levels. As Yale Professor of Hydrology Jim Saiers discussed in the Center’s first shale gas webinar earlier this fall, air pollution is one of many potential environmental concerns associated with shale gas development.  Shale gas drilling can impact air quality and human health in several ways, including through the release of methane (the principle component of natural gas), which contributes to climate change; nitrogen oxides (NOx) and volatile organic compounds (VOCs), which can lead to both ground-level ozone and particulate matter (PM), which are in turn linked to heart attacks and respiratory morbidity; carbon monoxide; and hazardous air pollutants, such as benzene. This blog looks at the sources of these air pollutants and regulatory steps that states and the U.S. EPA have taken to limit this type of pollution.

Shale Gas Development and Air Pollution

In February, the National Oceanographic and Atmospheric Administration (NOAA) reported research suggesting that air pollution from natural gas operations in Colorado is much higher than previously understood. While this research is from one area only, and applies to natural gas operations in general rather than shale gas specifically, it raises concerns about the potential air pollution that could occur locally and globally as a result of the shale gas boom.

Air pollution can occur at many stages in the shale gas supply chain, from gas production to transportation, distribution, and use. At the production stage, shale gas wells can “leak” methane and VOCs into the atmosphere during the period between well drilling and hydraulic fracturing and the point at which newly drilled wells are connected to gas collection, processing, and compression equipment and pipelines. While “green completion” technology can be used to capture all or most of this methane and other gases, and thus avoid air pollution, this technology is not always used. In the absence of green completions, gas capture may be delayed until after the initial “flowback” and “produced” water flows out of the well.[1]

In some cases, methane and other gases leaking from newly-fracked wells are burned or “flared.” Flaring converts the gas into less harmful substances, such as carbon dioxide (CO2). In other instances, methane and other well gases are simply “vented,” unchanged, into the atmosphere. Because methane is a much more potent greenhouse gas than CO2, flaring is better for the climate than venting. That being said, flaring is by no means a perfect solution since it still generates climate-polluting CO2, NOx, and other air pollutants.

Methane can also be released at other points in the natural gas supply chain, including from leaks in the pipelines used to transport the gas to market and from local gas distribution lines, as the New York Times recently reported. Dr. Ramon Alvarez from the Environmental Defense Fund discussed these methane leakage issues last month in the second installment of our webinar series. You can read a summary of Dr. Alvarez’s presentation and also view an archived recording of his webinar here.

Beyond methane leakage, other sources of air pollution associated with shale gas development include emissions from the machinery used to drill wells and transport gas and, where gas is used for energy, from the eventual combustion of this gas itself. For example, shale gas drilling involves a significant number of trucks (generally diesel) and other equipment. The internal combustion engines in these trucks, well-drilling machinery, and gas compressors produce air pollution in the form of CO2, NOx, and PM. When natural gas is combusted to generate heat or electricity, it also releases CO2. And while the CO2 emissions from natural gas are lower on a per-unit energy basis than other fossil fuels—e.g., coal and petroleum—the CO2 released during gas combustion still contributes to global warming at non-negligible levels.

Regulating Shale Gas Impacts on Air Quality

While some amount of air pollution from shale gas development is likely inevitable, the types and scales of these environmental impacts can be reduced through regulatory safeguards.

In their paper, “Regulation of Shale Gas Development, Including Hydraulic Fracturing,” Professor Wiseman and her co-author Francis Gradijan discuss current federal and state air quality regulations that aim to reduce this pollution. On the federal side, the EPA has established National Ambient Air Quality Standards (NAAQS) under the Clean Air Act for “criteria pollutants” (pollutants that are common throughout the U.S.) and technology-based standards for “hazardous air pollutants” (pollutants that are toxic or hazardous to humans).

Shale gas development produces both criteria and hazardous air pollutants.  Yet Professor Wiseman notes that because the Clean Air Act focuses primarily on “major” sources, many EPA regulations do not apply to shale gas wells, which, while potentially cumulatively significant, generally do not individually emit sufficient quantities of pollutants to qualify as major sources. Professor Wiseman notes that the EPA may soon redefine its methodology for calculating major sources in a way that could bring more shale gas (and other natural gas) sites within the scope of its regulations although this step has not yet occurred.

There are, however, some situations in which EPA regulations do limit air pollution from shale gas wells. For example, Professor Wiseman explains that even “minor” gas operations may be subject to federal regulations if these operations are located in “nonattainment” areas, which are locations that currently exceed the federal NAAQS and are thus subject to more stringent requirements. Additionally, new gas compressor stations and existing stations that increase their hourly pollutant emissions are subject to technology requirements under EPA’s New Source Performance Standards (NSPS). EPA recently promulgated new NSPS for VOCs emitted from fractured and re-fractured wells, which will eventually require drillers to use green completions.

Nevertheless, the limitations of federal regulations mean that state law may often provide the only applicable air quality controls for many shale gas wells. Professor Wiseman writes that New York and Colorado currently have the strongest regulatory regimes in this respect, but that many states lack regulations to control or even monitor air pollution from shale gas wells.

As can be seen in the following table, air quality regulations for shale gas development in the five states – Texas, Louisiana, Oklahoma, Arkansas, and Pennsylvania – with the highest levels of shale gas production in 2010 (the most recent year for which data from the U.S. Energy Information Administration is available), vary widely. These regulations generally apply to both shale gas wells and conventionally-drilled natural gas wells.

(click to download)

The table, which draws from Professor Wiseman’s paper and research conducted by Resources for the Future (in which Professor Wiseman is also involved), shows that four of these five states regulate gas venting to at least some extent, such as by requiring flaring if emissions reach certain levels. However, Texas includes numerous exceptions to these requirements and Pennsylvania’s regulation prohibits venting only in cases “when the venting produces a hazard to the public health and safety” (e.g., due to a risk of explosion).

Most of these states also regulate emissions from other areas of the shale gas development process, though these regulations may be circumscribed in scope or, as in Pennsylvania, subject to significant exceptions.

Given that shale gas development is a relatively recent phenomenon, its air quality impacts—and the effects of specific regulations—are still uncertain. Thus, one key area of regulation is the extent to which states require monitoring and reporting, which can help policymakers better understand air quality impacts and regulatory outcomes. Monitoring and reporting are also critically important for compliance enforcement. Louisiana currently requires monitoring and recordkeeping for flaring and venting of natural gas and glycol dehydrators. Other states, such as Arkansas and Pennsylvania have conducted surveys of air pollutant emissions from shale gas development, which could help improve future efforts. Texas has implemented an air quality monitoring program in the Barnett Shale Area.

Understanding and Improving Regulation of Shale Gas Development

Whether these current regulations will ensure that air quality remains at an acceptable level is a key question for policymakers moving forward and for states that have yet to develop their own approaches to shale gas regulation. On Wednesday, December 5, we will address these issues explicitly as we discuss current local, state, and federal approaches to regulating shale gas’ air impacts; regulation of other shale gas impacts, including on water quality; and the implications of these current approaches for future regulatory regimes through Professor Wiseman’s webinar on “Understanding and Improving Regulation of Shale Gas Development.”

 


[1]Fracking entails high pressure underground injection of large volumes of water mixed with chemicals, sand, and other substances, a portion of which returns to the surface as “flowback.” “Produced water” is naturally-occurring subsurface water, which also flows out of wells and may contain dissolved solids, metals, organic and inorganic compounds, and naturally-occurring radioactive material.

Posted in: Environmental Law & GovernanceEnergy & Climate
Tuesday, November 27, 2012
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DecisionMakr at Doha: Can a new smartphone app hold leaders more accountable?

By Guest Author, Angel Hsu, Project Director, Yale Center for Environmental Law & Policy

This post was also published by the Huffington Post.

Expectations for the global climate negotiations taking place over the next two weeks in Doha, Qatar, are dismally low, and major political transitions in China and the United States – the world’s two largest emitters of greenhouse gases – further temper hope for any kind of game-changing proposal. So what are the more than 7,000 civil society members and 1,500 journalists(myself included) in attendance going to do to make their opinions count and to hold their governments accountable for accomplishing something in Doha?

Well, there’s an app for that, and it’s called DecisionMakr.

Having attended many of these negotiations in the past, I question the value of emitting carbon to fly halfway around the world to attend another COP meeting. As an observer, I am relegated to the corridors, where I hope to bump elbows with negotiators and deliver my two-minute elevator pitch. I’ve spent hours in the back of general plenary sessions trying to make sense of diplomatese and the carefully prepared platitudes that ultimately restrict nations’ ability to compromise on difficult issues. After two weeks of these meetings, my head is spinning, and it’s challenging to distill what just happened.

When I knew I’d be attending Doha this year, I started thinking about how to make better sense of what goes on at a huge and hectic conference like these UN meetings. Technology – in particular, social media -- came to mind as a potential solution to the problem. I first started blogging and using Twitter while attending the watershed Copenhagen climate negotiations in 2009. With approximately 50,000 observers, nearly 100 heads of state, and close to 200 countries represented, it was chaotic and difficult to keep track of what was happening. With all the high-intensity drama including secret negotiation texts, exclusive back-door meetings, developing countries suspending talks and staging a walk-out, Twitter became an invaluable tool for receiving up-to-the minute updates, crowd-sourced from the multitudes of civil society observers and journalists who were “live-tweeting” events as they were unfolding.

After a conference ends, one is left with hundreds of thousands of tweets, but not a good way to hear the signal through the noise. So I pitched the idea of a smartphone app that leverages crowd-sourcing via Twitter to give observers a way to assess the quality of negotiation statements and policy proposals with ratings that can then be averaged to produce a final score. In this way, both observers and negotiators can have a real-time record of a speaker or country’s actions at a conference, and a ranking that provides an indication of how the public felt about their statements compared to others. In the Environmental Performance Index– a biennial ranking of environmental policy results in 132 countries – we’ve seen how rankings matter and how powerful they can be in terms of galvanizing action among leaders and laggards. I wanted to see if we can generate the same type of data and accountability for negotiators though an app – in a way similar to how user feedback ratings influence how we shop on retail sites like Amazon.com, where we eat using restaurant guides like Yelp.com, and where we travel and stay using feedback from other travelers at tripadvisor.com.

Teaming up with developers and engineers at Pariveda Solutions at the Social Good Forum Hackathon sponsored by AT&T, I developed a smartphone and web application called DecisionMakr that will be the start of a social (and academic) exercise in Doha to see whether we can use technology and social media to hold negotiators more accountable. One singular rating along with a log of all statements and proposals will add greater transparency to these sometimes opaque negotiations. While it is difficult to distill how two weeks or more of deliberations often end in one single negotiation text, the app will provide documentation of the shifting positions of countries to allow outsiders to better understand how the end result came to be. We hope that leaders will see their ratings and feedback, and respond as a result.

The DecisionMakr app will officially launch in Doha on Nov. 26 and is currently available at www.decisionmakr.org and free for download at the Apple iPhone App Store. All of the action can also be followed on Twitter @DecisionMakr.    

Posted in: Innovation & EnvironmentEnvironmental Law & Governance
Monday, November 26, 2012
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What to Expect from China in Doha

By Guest Author, Angel Hsu, Project Director, Yale Center for Environmental Law & Policy

This post originally appeared November 22, 2012, on China FAQs.

The next round of United Nations climate negotiations is gearing up to take place starting next week in Doha, Qatar, where countries will look to both China and the United States to see whether domestic political events will provide any momentum for the stalling talks. However, because of the proximity of the U.S. Presidential Election and the start of China’s once-in-a-decade leadership transition that will culminate in March, it is not expected that the world’s two largest emitters of greenhouse gases (GHGs) will be bringing too much by way of game-changing developments to Doha. Instead, we can expect most of the discussions in Doha to focus on securing final details for a second commitment period for the Kyoto Protocol, primarily for the E.U. and now Australia, as well as starting to formulate language for a new deal that will be decided by 2015.

1) Demonstrating Progress toward energy-intensity reduction goals.

Recently released provincial energy consumption data for 2011 shows that China is on its way to meeting the binding energy intensity reduction goals announced last year in the 12th Five-Year Plan. The new data show a 2.01 percent reduction in energy intensity for 2011, the first year of the 12th Five-Year Plan, which is significant considering that only 1.79 percent was reduced in the first year of the 11th Five-Year Plan. Although the goal for 2011 was a 3.5 percent reduction in energy intensity, Chinese officials blamed this miss on faltering hydropower due to droughts in southern China and have vowed to reach goals in subsequent years. Publishing these statistics prior to the Doha negotiations is an important step for China to demonstrate it is making substantial progress toward meeting its energy and carbon intensity reduction goals first made in the watershed Copenhagen climate negotiations in 2009 and then reaffirmed in both Cancun and Durban.

In addition to this release of data, China’s State Council revealed more specifics about how the country aims to achieve the remainder of its energy intensity reduction targets in the publication of its 2012 edition of a White Paper on China’s energy policy. In this high-level policy document, the Chinese government acknowledges challenges for China in making substantial shifts in its energy supply, reductions in consumption, and investments in renewable energy. Acknowledging that its primary energy output in 2011 ranked first in the world at 3.18 billion tons of coal equivalent, the white paper provides some insights on priorities and what the Chinese delegation may be emphasizing in Doha. For one, the White Paper definitively states that fossil energy, including coal and oil, will continue to play a dominant role in China’s energy supply “for a long time to come.” This language may indicate that conversations speculating on when China’s emissions may peak at Doha may be premature, although developed countries will surely try another push for China to include language in the next global agreement defining a peak year for its emissions. The white paper also clearly emphasizes technology innovation, technology transfer, and market mechanisms that will be critical topics discussed in Doha.

We can expect China in Doha to emphasize this progress as well as its 12th Five-Year Coal Plan released in April, which sets limits for coal production capacity at 4.1 billion tons and an annual output target of 3.9 billion tons by 2015 (read more about the Coal Plan in a previous ChinaFAQs blog). China also released more details for renewable energy targets in early August, including a goal for total renewable energy consumption set at 478 million tonnes of coal equivalent or 9.5 percent of the overall energy consumption mix by 2015. Of this goal, total installed hydropower generation capacity is targeted to reach 260 gigawatts; wind to reach 100 gigawatts; solar capacity at 21 gigawatts; and biomass energy at 13 gigawatts.

2) New alliances, such as the “Like-Minded Developing Countries” negotiation bloc.

Given how entrenched country positions and political alliances can be at these meetings, particularly between developed and developing (or Annex I and non-Annex I countries under the UNFCCC), it is encouraging that China, along with around 20 other developing countries from the G77 & China, have formed a new group called the Like-Minded Developing Countries (LMDC) that may help to push through some of previous meetings’ deadlock. Beijing hosted the first meeting of the group in mid-October and in attendance were Bolivia, Ecuador, Egypt, India, Malaysia, Nicaragua, Pakistan, Philippines, Saudi Arabia, Thailand and Venezuela – a geographically, economically, and politically diverse subset of the G77 & China that has bonded together over their “common interests and priorities,” which appear to be focused on the adverse effects of climate change and extreme weather events that have impacted their “survival and development aspirations.” With the Northeastern coast of the United States recently suffering a climate-related extreme weather event in the form of Hurricane Sandy, it will be interesting to see whether the United States will empathize with the LMDC position and form an alliance, perhaps similar to the coalition that formed between the European Union and the most vulnerable small island states and least-developed countries in the Durban talks last year. At very least, the combination of China, along with OPEC-member Saudi Arabia, in addition to Bolivia, which gained notoriety in the Cancun talks two years ago for being the lone country opposing the final agreements would hopefully help to secure consensus amongst the G77 & China for a clear strategy moving for a new global climate deal by 2015. It is nevertheless encouraging to see China playing a leadership role if this signals it is trying to think creatively about the negotiations and for solutions to break the intractable stalemate that often plagues these climate talks.

3) Emissions Trading Pilots.

China has continued preparation for the launch of seven carbon-trading pilots by next year and an eventual nationwide carbon-trading program in 2015. The emissions trading programs are currently being piloted in the cities of Beijing, Tianjin, Shanghai, Chongqing and Shenzhen and the provinces of Hubei and Guangdong. These pilots will provide inputs into the design of an eventual nationwide program, and in large part will shape the future of carbon markets in China. China’s leadership on this front may help to encourage other countries that are considering developing similar domestic carbon trading schemes, and for eventual linkage of national schemes to a global carbon market, as Australia is considering for a national registry to be launched in 2013 and connected to the EU Emissions Trading Scheme (EU ETS) by 2015. These pilots could also galvanize other emerging economies such as India and Brazil to follow suit, as well as help to shape the discussion of new market mechanisms for climate mitigation in Doha.

A key issue that will be discussed in Doha that may have bearing on China’s emissions trading pilots and its national system in 2015 is with respect to accounting rules for GHG emission baselines, inventories, and registries. The pilots have not yet released details about specifications for accounting rules. China still has a ways to go with respect to developing transparent energy and climate accounting methods that are consistent across entities both amongst regions in China and internationally. Already, a number of reports questioning the accuracy of China’s energy statistics have brought increased international scrutiny of the country’s data. High-quality GHG emissions data will also be imperative if China is to be successful in ramping up its seven emissions trading pilots to the national level. In the European experience with the EU ETS, the price of trading allowances dropped after emissions data was released – something that could have been avoided if data had been reported more transparently. It appears that the success of the pilots largely hinges on transparent and effective MRV mechanisms, particularly if China hopes to expand these programs regionally within the next few years.

It is clear that transparency and quality of data in MRV will build a foundation of international trust. This has implications not only for climate change negotiations, but also for multinational firms dealing with different MRV systems, which may also stand to benefit from improved market stability that comes with more frequent data. China has already made strides in showing its commitment to transparency with the release of its second national climate change communication to the UNFCCC earlier this month, which includes an update to its national GHG emissions inventory that includes data for 2005. GHG emissions data are disaggregated by sector and by gas, with an explanation of uncertainty estimates and methodologies used – key elements that establish China’s progress on data transparency. China will hopefully be able to incorporate further discussions on accounting rules, market mechanisms, and MRV in Doha to ensure the pilots and the eventual national scheme can effectively link globally in the future.

4) Hints from the new Chinese leadership.

A discussion of what to expect from China in Doha would be incomplete without talk of any implications China’s leadership transition could have in Doha. Unfortunately, there are so far not many indications as to how a new Chinese leadership under Xi Jinping and Li Keqiang might impact energy and climate issues. At very least, with the 12th Five-Year Plan set in stone until 2015, we can expect the new leaders to follow a course to achieve the range of energy and environmental targets in the Plan. In particular, at the 18th National People’s Congress meetings that started immediately following the U.S. Presidential Election, outgoing President Hu Jintao stressed the need to incorporate “ecological progress” into all aspects of the nation’s development moving forward. He also declared that his “Scientific Outlook on Development” first introduced in 2003 was the most important Party achievement in the past decade, cementing it as the guiding ideology for the Communist Party moving forward. Therefore, we can anticipate that the new Chinese leaders will continue to emphasize its commitments to energy, climate change, and the environment with a people-centered, scientific approach.

In Doha, China will also look toward the United States for leadership, although China may take a similar approach in its messaging as it did last year in Durban – testing several new ideas and being more proactive on discussions such as legally-binding agreements and absolute emission limits that seemed to have helped pressure the U.S. to concede to an agreement with “legal force” in the final hours of the negotiations.

Look for more of my updates coming from Doha by following the action in real-time on Twitter at @DecisionMakr and blogs on ChinaFAQs.

Posted in: Environmental Law & Governance
Tuesday, November 20, 2012
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Setting the Stage for Climate Negotiations

By Guest Author, Marissa Knodel, Yale F&ES '14, and Omar Malik, Yale F&ES '13

This month, a group of enthusiastic Yale students will take part in the ongoing drama of climate change negotiations in Doha, Qatar. They will participate in the 18th Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), the global stage where countries have been meeting to tackle climate change since 1992. While the experience will be new for the students, seasoned diplomats are prepared for a familiar scene: from Cancun to Durban to Doha, efforts to mitigate the adverse impacts of climate change and prevent harm to millions of vulnerable people around the world have instead turned into deliberations over the process itself.

Even if developed countries were in full compliance with their Kyoto Protocol greenhouse gas mitigation pledges, the global average temperature would only be reduced by 0.03°C by 2100. It turns out that this would not be enough to prevent severe economic, environmental, social, political, and cultural consequences from being felt around the world.[1] Small island nations, in particular, will face existential threats that include off-island migration and the massive displacement of people.[2] Failure to reach agreement threatens to render the UNFCCC a mere rhetorical aspiration. 

The Doha conference presents an opportunity to buck the intractability of the negotiations. At the previous COP in Durban, countries declared that they would “raise the level of ambition”[3], and, at the same time, they created an open-ended structure for future agreements. The future agreement, to be negotiated by 2015, may either be a “protocol, legal instrument or outcome with legal force”[4] and will start to become formulated at Doha. The concept of “common but differentiated abilities” isn’t mentioned in the Durban Platform, however, meaning that the official division between developed and developing countries isn’t as clear as it once was in Kyoto Protocol and the UNFCCC.[5] This opens up a potential avenue for change. In the words of the climate change scholar Daniel Bodansky, “[The Durban Platform] is an empty vessel that can be filled with whatever content the parties choose.”[6] All in all, the future pathway of negotiations remains uncertain.

Last month, we visited met with UNFCCC Executive Secretary Christiana Figures, who shared some of her insights as to the keys for success in Doha:

- The negotiations in Doha are an opportunity for countries to extend the Kyoto Protocol and will help pave the way for a new treaty regime.

- Consumers, civil society, and the private sector must play important roles in reaching the low-carbon economy.

A closed-room conversation with Ms. Figueres gave us a chance to ask frank questions that were of interest to the up-and-coming diplomats in the room.  She started off with a discussion of where we currently are at in the negotiation process, noting that progress has been made despite the fact that movement has been,  in her words, “excruciatingly slow.” However, she was cautiously optimistic overall and thought that the future offers a critical chance to change the psychology of the UNFCCC process; participants must go from a perception of  “burden-sharing” to one of "opportunity-sharing.” At the next conference, a Doha Amendment will be needed  to bring about the “seamless continuity” of the climate regime for all countries, including a second commitment period for the Kyoto Protocol.

Ms. Figueres also advocated a more decentralized and approach to solving the climate problem. She told us that we can’t leave all of this work to governments—consumers, civil society, and the private sector are essential to making the new low-carbon economy a success. She urged us to change our personal habits by re-evaluating our transportation means, electricity demands, and purchasing choices. As our time with her drew to a close, she called on all of us to take personal responsibility and holistically change our carbon-consumptive lifestyles. "Move it!” she said, as she banged on the table. “This country is paralyzed! The problem is going to be in your laps.”

Though most citizens will not have the opportunity to attend an international climate change negotiation or meeting, they may nevertheless wield power through influence on politicians, delegates, and the nature of the negotiations. Looking ahead to Doha, nations face the option of negotiating an outcome more ambitious than the Durban Platform that takes the commitment to prevent dangerous climate change seriously or continue the pattern of “a meta-negotiation about what to negotiate.”[7] By raising public awareness, consciousness, and activism, participants at both the “top” and “bottom” hope to make people rather than process the focus of negotiations. 

 



[1]
William D. Nordhaus & Jospeh Boyer, Warming the World: Economic Models of Global Warming, 152-153 (2001).

[2]Working Group II of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press, 2001. p. 845-870. Accessed online.

[3]The Durban Platform (CP.17), Paragraph 6.

[4]The Durban Platform (CP.17), Paragraph 4.

[5]Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.

[6]Ibid.

[7]Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.

Posted in: Environmental Law & Governance
Thursday, November 15, 2012
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Climate Action is NOT Back on the Table

By Josh Galperin, Associate Director

In his first post-election news conference President Obama put to rest the speculation that he might be preparing to take serious and comprehensive action to combat climate change.

While acknowledging that global climate change is a real danger and agreeing that his administration has not done enough to fight the threat, the President declined to offer any specific plan or even general commitment for how the United States might address climate change in the next four years. Instead, President Obama reminded the public that crafting a political solution to climate change is a difficult task, saying:

“I don’t know what either Democrats or Republicans are prepared to do at this point because this is one of those issues that is not just a partisan issue. There are regional differences. There’s no doubt that for us to take on climate change in a serious way would involve making some tough political choices.”

Although the Obama administration took some actions in its first term, including first-ever standards for new coal plants (although very few new coal plants are planned) and fuel efficiency standards for motor vehicles, there has been speculation and hope that the Administration would make a push for broad Congressional action.

The political difficulties of such action are no secret. On the other hand, the President has taken on and succeeded at other difficult political tasks such as passing his healthcare reform law. Of course that effort happened with a Democratic majority in the House of Representatives, which no longer exists. The healthcare battle may, in fact, have been the very reason that the Democrats lost control of the House.

The President did not rule out any new effort in the next term, but he did put an end to the almost giddy expectations. Luckily, there is still hope for mitigating climate change even without the United States. The Yale Center for Environmental Law and Policy, Yale Climate and Energy Institute and the Oscar M. Ruebenhausen Fund at the Yale Law School co-hosted the international conference “Global Climate Change Policy Without the United States: Thinking the Unthinkable.”  The conference took for granted that the U.S. will not enact national climate legislation and then offered many technologies, legal mechanisms, sub-national programs and private sector initiatives that could move the globe in the right direction.

The Yale conference, perhaps, offers an implicit suggestion that as President Obama reflects on his “tough political choices” he should remember that many other nations, with less responsibility on their shoulders, have managed to surmount the politics and take action. Sooner or later the United States will either have to act or admit that our leaders simply do not have the courage or creativity to move forward.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, November 08, 2012
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Is Climate Action Back on the Table?

By Josh Galperin, Associate Director

Early Wednesday morning President Obama mentioned climate change for the first time in a long time. Couched in a list of problems that the next generation will face, President Obama briefly mentioned “the destructive power of a warming planet” in his victory speech on Wednesday morning. Later in the day Senate Majority Leader Harry Reid also said that he hopes the U.S. Senate can address climate change.

Even overlooking this limited enthusiasm, it is difficult to believe federal climate action will be a major theme in the next Congress – but perhaps that doesn’t matter.

Amid the talk of climate action yesterday the Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute (YCEI) co-hosted Dorothy Barnett as part of the climate policy speaker series, “The ‘C’ Words: Addressing Climate Change Without Talking About Climate Change.” Dorothy is the executive director of the Kansas-based non-profit Climate and Energy Project (CEP), which works throughout the lower Midwest.

Dorothy’s region is consistently hostile toward federal or even state climate policy; however, as Dorothy explained last night, there are plenty of effective local and regional tactics for dealing with climate change (without talking about climate change).

CEP has created successful programs such as the Take Charge Challenge, Kansas Interfaith Power and Light and HART, the Heartland Alliance for Regional Transmission, all of which build non-traditional partnerships to address things such as economics, jobs, faith and energy independence.

The Take Charge Challenge, for example, was a competition between residents of six Kansas towns to save the most energy over the course of a year. Building on the spirit of friendly competition and the money that individuals can save by reducing their energy use, the towns and local electricity providers worked with residences to switch light bulbs, install programmable thermostats and undertake home weatherization, among other energy saving measures. The winning town reduced energy use by 5 percent over the course of a year. More importantly, the competition showed that people are willing to take the personal action necessary to address climate change, but they do not need to take action because of climate change.

In response to an audience question last night, Dorothy said she was hopeful for federal climate action, but as her experience shows, there is more than one way to make progress. President Obama and Majority Leader Reid have a big and important task ahead of them, but they will have (unwitting) help from political opponents and climate skeptics in places like Kansas where personal steps to save money and create local jobs will move us all in the right direction.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, October 31, 2012
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Another Look at Cost Benefit Analysis

By Josh Galperin, Associate Director

Cost benefit analysis (CBA) is a much touted and much debated tool for environmental policymaking. At its foundation, the premise is simple; CBA uses analytical formulas to determine whether the monetized benefits of a proposed regulation outweigh the monetized costs. Where the benefits outweigh the costs, the policy proposal should become a reality. It is the seeming objectivity of CBA that makes it attractive to its proponents. 

One such proponent is Professor Ben Trachtenberg of the University of Missouri School of Law. In an article forthcoming in the November/December issue of the Environmental Law Institute's Environmental Forum, Professor Trachtenberg argues that CBA has flaws, but that they are superficial flaws, which can be addressed through tweaks to the process. Specifically, Professor Trachtenberg looks to the way that the value of future human lives are discounted when conducting a CBA. Discounting is based on the economic understanding that people value money more today than in the future. For instance, if I offered $100 in 1 year, or $94 today, most people would accept a smaller sum today. Thus, if an environmental regulation will save a human life not today, but in the future, we need to calculate the value of that life and then discount it to its present value. 

Professor Trachtenberg's article argues that CBA would more accurately reflect the costs and benefits of environmental policy if the discount rate were lower, that is, if the value of future lives were reduced less when converted to present value. To support this argument Professor Trachtenberg point to two items: increasing healthcare costs and increasing gross domestic product. As people are willing to pay more to avoid death and as future generations become richer, their theoretical lives become more valuable. Where future lives are more valuable, they should be discounted at a lower rate.

Professor Trachtenberg's assessment is accurate. However, Professor Kysar and I co-authored a brief response, forthcoming in the same issue of the Environmental Forum in which we argue that efforts to mend rather than end CBA in environmental policymaking will not ultimately result in better environmental governance. Efforts such as Professor Trachtenberg's are arguments for changing CBA, but more importantly they are demonstrations of how fragile CBA is.

While CBA is proffered as an objective tool, the tweaks that Professor Trachtenberg identifies are just two among many potential changes, all of which can be subjectively used and abused to change the outcome of a given analysis. CBA, therefore, creates a veil of objectivity over yet another subjective process. This sort of marginal effort will work to marginally improve policy, but it will also work to solidify the role of CBA, for better or worse. In other words, those who strive to give future generations more consideration in environmental rulemaking should take care not to relinquish alternative tools, which rest on more principled grounds, in exchange for temporary relief from the limited capabilities of CBA. 

Posted in: Environmental Law & Governance
Monday, October 08, 2012
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A Ship Unsunk

By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12

This spring the US Department of Transportation has, with the stroke of a pen, changed longstanding federal policy.  In the past, retired Naval vessels potentially contaminated with dangerous toxins had been made available for the creation of artificial fish reefs. Now vessels built before 1985 – those potentially contaminated with polychlorinated biphenols (PBCs) -  will no longer be considered for use in artificial reefs.  This is a victory for human health and the health of our oceans.

This policy change resulted from, among other actions, research undertaken by graduate students in the Environmental Protection Clinic at the Yale Law School and Yale School of Forestry & Environmental Studies, who worked with the Natural Resources Defense Council to oppose efforts to sink a particularly troubling former Naval vessel, the ex-USS Kawishiwi, off the coast of California.

The USS Kawishiwi was a uniquely American vessel: named for a Minnesota river, built in a New Jersey shipyard, and commissioned in a Philadelphia Naval base, this seven million gallon oil carrier served the 7th Fleet in the Pacific for more than 30 years of the Cold War.   In 1979 it retired from active US duty.  In 1992 it entered the Suisun Bay Reserve Fleet (one of three federal storage sites for America’s mothballing “national defense reserve” ships). And in 2011 it became available for artificial reefing.  In ancient Japan, stones were rolled into the ocean to provide substrate for reefs and new homes for reef fish.  Now we sink ships.

In addition to the hydrocarbon residues of a half-century of marine diesel fuel to be found in its tanks, the ex-USS Kawishiwi likely contains heavy metals (mercury, lead, barium, and cadmium) in its guidance systems, light switches, radar displays, and hull paints. Hydrocarbons and heavy metals are, respectively, carcinogens and neurotoxins.   Polychlorinated Biphenols (PCBs) – carcinogenic, mutagenic, and teratogenic bioaccumulators (meaning they are passed upward in food chains) - will be found in the ship’s boiler rooms, radio rooms, engine rooms, and weapons rooms, as well as in its adhesive tapes, switchboards, insulators, capacitors, and transformers.  Anything made of plastic in the ship will likely contain PCBs.

If it had been sunk in California state waters this year, as planned, the former USS Kawishiwi would have been the 9th such ship intentionally sunk off California, and the 5th sunk to create a reef, in the last 30 years. Though it is unclear what effect this new reef would have had on fish communities, or the dive enthusiasts who supported its creation, it is clear that any contaminants that would have survived a ship cleaning (there would have been many) would have sloughed from the ship, leeched into the ocean, and settled comfortably in the fatty tissues of marine organisms throughout the nearby water column. Eventually these contaminants would have made their way back onshore, to accumulate in the bodies of the terrestrial mammals that first commissioned them to the sea.

Through a letter of complaint based on our research, sent to the Department of Transportation’s Maritime Administrator, the Natural Resources Defense Council officially opposed the planned sinking. Through a Freedom of Information Act request we have now learned that not only will the USS Kawishiwi no longer be considered “available for reefing” but federal policy has also officially changed - all ships owned by the Department of Transportation (there are more than 40 left in reserve) cannot be considered for reefing if they were built before 1985 (the year at which PCBs are no longer likely to be ubiquitous onboard) and will, generally, be locked into recycling plans if recycling is possible.  This is a policy change guaranteed to better protect human health and the health of our oceans. And these ships are now, incidentally, more likely to create jobs (through recycling) and save taxpayers money (reefing is expensive).

Miles to go

Though old, toxic naval vessels will no longer be available for use in artificial reefs, our government is still sinking decommissioned vessels at an alarming rate.  The Navy training program SINKEX, or “sinking exercise,” uses former vessels for target practice and ordinance tests.  Over the last fifty years dozens of potentially contaminated vessels have been sunk in US waters under the SINKEX program. Last summer the Navy sunk three off the coast of Hawaii.  This fall holds plans for another sinking.

Though these ships are often cleaned to the best EPA guidelines, full removal of dangerous toxics is impossibly difficult. The toxins that went down with a recently sunk ship, the ex-USS Oriskany, have now been found in the tissue of fish surrounding the wreck. 

Is the SINKEX program worth the risks it poses to human health?  Are there better ends for these ships (including recycling, which creates jobs and drives economic activity)?  These are the questions at the heart of an open lawsuit against the EPA, filed by Earthjustice on behalf of a coalition of environmental groups late last year, which demands that the agency better regulate potentially harmful ship sinks. 

With high uncertainty surrounding the safety of these sunken vessels, now might be time for more debate and fewer reefs. The Department of Transportation’s policy change was movement in the right direction, but we still have miles to go.

 

 

 

 

Posted in: Environmental Law & Governance
Monday, October 01, 2012
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Court Ruling Leaves Shale Gas Questions Unanswered

By Guest Author, Josh Galperin, YCELP Associate Director

These days it seems there is constant release of new information about hydraulic fracturing. Recent news from a federal court in New York, however, is a departure from this trend. A September 24th ruling in State of New York v. U.S. Army Corps of Engineers has rejected an attempt to require officials at the Delaware River Basin Commission (DRBC) to gather and release potentially valuable new information on the anticipated effects of hydraulic fracturing on the Delaware River Basin.[1]

The Delaware River Basin is a coveted landscape that provides drinking water to New York City and Philadelphia, among other locales. Because the water resources of the Basin are important to multiple states and communities, they are cooperatively governed by the DRBC.

Underlying much of the Delaware River Basin is the Marcellus Shale, a rich source of natural gas that has only recently become available and economic to exploit. Recognizing the potential environmental, economic and cultural impacts of significant new shale gas development, in 2010, DRBC began the process of developing regulations regarding natural gas extraction within the Basin. DRBC also determined that it would not permit any gas extraction in the Basin until such time as it adopts final regulations. Over the past two years DRBC has drafted and proposed – but not yet voted to adopt – new regulations that would lift the current ban on natural gas extraction in the Basin and permit regulated drilling.

In this interim period, the State of New York and a number of NGOs sued DRBC (and a series of federal partners) claiming that the National Environmental Policy Act (NEPA) requires DRBC to prepare an Environmental Impact Statement (EIS) detailing the potential impacts of its proposed gas drilling regulations.

Generally speaking, NEPA requires federal agencies to prepare an EIS whenever they are undertaking a project that will have significant environmental impacts. In the EIS, the federal agency considers the environmental implications of its project and evaluates possible alternatives. One important benefit of the EIS is that it is a single, comprehensive source for an abundance of data and information on the environmental impacts of a proposed federal project or program.

Unfortunately, the U.S. District Court for the Eastern District of New York ruled on September 24th that New York State and the other plaintiffs cannot continue a lawsuit that might have forced DRBC to complete an EIS at this stage. This decision not only delays DRBC’s potential obligation to perform environmental review, but ratifies DRBC’s poor planning, which so far has proceeded with development of regulations without the benefit of an environmental review.

The primary question that the court addressed was whether New York State and the other plaintiffs would suffer injury if DRBC did not complete an EIS. In similar situations, other courts ruled that failure to complete an EIS could lead to “uninformed decisionmaking,” which amounts to an injury, and, because of this injury, past lawsuits were allowed to move forward.[2] However, the court here looked critically at the past cases and found that “in each case, the government had acted in the form of a final order, regulation, plan, denial of a request, or statute.” In other words, the court determined that failure to complete an EIS could only injure a plaintiff when it is attached “to an actual agency action,” which, according to the court, has not yet occurred in the DRBC case.

This reasoning appears strained. NEPA is designed to inform decisionmaking, and most federal agencies, at a minimum, recommend that the required environmental review happen at an early stage of project development. Here, the court found that a review is not required before an “actual agency action.” Yet there is no reason that issuance of draft regulations could not be considered sufficiently “actual.”  Issuance of proposed regulations should suffice because it is at this point that potentially injured parties will become fully aware of the existence and scope of the impending injury. In fact, at least one other court has specifically agreed that proposed action is enough to present a real threat of uninformed decisionmaking.[3]

The court here sets up a straw man, saying that it “believes that the reasoning [of other courts, allowing plaintiffs to sue for failure to complete an EIS] cannot be extended indefinitely backward, to embrace internal agency deliberations, drafts or legal analysis . . .” But the official public issuance of proposed regulations is certainly more substantial than internal drafts, deliberations or legal analysis.

In reality, the threat of uninformed decisionmaking arises as soon as decisionmakers begin to consider regulations without the benefit of an EIS. As the court noted, it is not practical to require an EIS at very early stages, in part because there is not any concrete government action associated with early deliberations. Conversely, though, when an agency officially issues proposed regulations without an EIS, it is clear that the agency developed these regulations without complete information, and this is when the actionable threat emerges.

Aside from the legal arguments, the real trouble here is that the basis for this lawsuit was not merely a battle of pro- and anti-fracking factions. Rather, it was an effort to gather information, to put as much transparent analysis as possible into the public sphere, and to improve decisionmaking. As it stands, the fracking debate is heated but largely under-informed. A great many questions about fracking’s air quality, climate, community, water use, wastewater, groundwater, economic and electricity generation impacts are still unanswered. Had this lawsuit turned out differently, it could have led to important new insights.

Thanks to Bruce Ho, Research Scholar in Law, Coca-Cola World Fund Faculty Fellow, and Clinical Lecturer in Law at Yale Law School for his contributions to this post.

______________

[1] State of New York v. U.S. Army Corps of Eng’rs, United States District Court for the Eastern District of New York, 11-CV-2599 (Sept. 24, 2012).

[2] Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002).

[3] See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir. 2006).

Posted in: Environmental Law & GovernanceEnergy & Climate

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