Tuesday, November 20, 2012
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. Small island nations, in particular, will face existential threats that include off-island migration and the massive displacement of people. 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”, 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” 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. 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.” 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.” 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.
William D. Nordhaus & Jospeh Boyer, Warming the World: Economic Models of Global Warming, 152-153 (2001).
Working Group II of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press, 2001. p. 845-870. Accessed online.
The Durban Platform (CP.17), Paragraph 6.
The Durban Platform (CP.17), Paragraph 4.
Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.
Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.
Monday, November 19, 2012
By Guest Author, Aaron Reuben, Yale F&ES '12, with Omar Malik, Yale F&ES '13
Last year the citizens of the Republic of South Africa were preparing their hotels and conference centers for another wave of foreigners to descend upon their shores. This year the revelers of 2010’s World Cup competitions were replaced by the more stoic diplomats of a world climate negotiation (specifically the 17th Congress of the Parties to the United Nations’ Framework Convention on Climate Change). Despite the change in dress (business suits over track suits) the results of the proceedings were similar: much fanfare, some victory, a good deal of disappointment.
For South Africa both events signaled a general desire to take to the world stage and bask in adoration for Africa’s most developed economy - and the newest member of the BRICS emerging economies consortium. These events, the climate conference in particular, also showed a willingness on the part of South Africa to accept a new, greater role in leading the governance of our planet.
Which is why the latest trends in the environment of South Africa are so troubling.
In the 2012 Environmental Performance Index, published in January by the Yale Center for Environmental Law & Policy, where we are researchers, South Africa ranked 128 out of 132 rated countries, just above Iraq and just below Yemen. Our index ranks the countries of the world on aggregated measures of environmental performance, in sectors like air and water quality, forest and fisheries protection, regulation of pesticides, and greenhouse gas emissions.
Across the general board (though there are exceptions), South Africa is one of the world’s worst performers and the worst in Africa (which is no small feat, as Oluseyi Fanyanju’s article on Nigeria’s poor performance reveals).
What accounts for this trend?
Analysis of our index points to two key places where South Africa is lagging and, generally, getting worse: air quality and water quantity.
It should be no surprise that Africa’s greatest greenhouse gas emitter is experiencing worsening air quality. According to the International Energy Association, over 90% of the South African electricity supply is coal-generation based. Compare that to 42% in the United States (no world leader in this regard). Emissions from this antique power sector, combined with rapid industrialization around urban areas, has created air pollution “hot spots” across the country, where respirable particulate matter concentrations have reached historic unhealthy levels. Though the air situation is improving for some damaging pollutants (notably sulphur dioxides, which contribute to acid rain) air quality in South Africa hovers around the lowest in the world, at least when ecosystem effects are taken into account, and that is not likely to change soon.
Related to its unhealthy energy mix, South Africa - a naturally arid and water-stressed state, with annual rainfall six times lower than the global average – is seeing its small water supply spent on extracting the coal it burns (mining processes demand huge amounts of water) and fueling an expanding mining industry (gold mining in particular). A 2010 report by the Africa Earth Observatory Network found 16 of South Africa's 19 Water Resource Management Areas to be in a marginal or stressed state (meaning current clean water resources do not meet demand). “It seems clear,” the authors reported, “that water shortages are going to occur on a large scale in South Africa, even if the country follows a no-to-very-slow economic growth path.” They estimated that R360 billion, (15% of South Africa’s GDP in 2010) will need to be spent to provide adequate water infrastructure for human populations and stressed ecosystems, unless less water-intensive energy resources are invested in.
Reversing the trend
The social problems facing South Africa as it seeks to spur economic growth are immense, as is the chasm that exists between its haves and have-nots. South Africa has the highest income inequality of any African nation. And with an unemployment rate just over 24%, this fact isn’t likely to change anytime soon. (An OECD report predicted that the SA economy would have to grow by 7% for over 20 years to achieve a significant reduction in unemployment – current growth rates hover around 3%). As NPR reported earlier this year, a staggering 73% of those unemployed are under the age of 35.
But current environmental trends and an abysmal EPI ranking suggest that South Africa may be heading towards an ecological tipping point. If economic progress isn’t tied to improving environmental health and justice, South Africa may find it hard to fulfill its ultimate commitment to its citizens – to provide quality lives and real, sustainable livelihoods; recent protests and the spread of violence around unsafe working conditions and low pay at South African mines attest to a failure of current policies to deliver these basic rights.
Though its rivers go dry to fuel coal extraction, and its airways grow dark with smog, it isn’t too late for South Africa to reverse the trend. Real potential exists for renewable energy production across the country. And if South Africa’s ruling party, the African National Congress, were to make good on their early commitment to invest in renewable energy, new solar and wind power projects could create desperately needed jobs and drive real human and environmental health benefits.
In his opening address at the world’s last climate conference, held in Durban, South Africa’s President Jacob Zuma, called on the leaders of the world to work together to “to save tomorrow today.” We agree. Now might be time for South Africa to lead the way.
Friday, November 16, 2012
By Guest Author, Nora Hawkins, Yale F&ES '14
In the second installment of the Yale Center for Environmental Law and Policy’s Emerging Issues in Shale Gas Development webinar series, Dr. Ramón Alvarez, a senior scientist at the Environmental Defense Fund (EDF) presented research from a paper he recently co-authored on natural gas use and its implications for climate change.
Dr. Alvarez noted that natural gas, which is increasingly available due to a boom in domestic shale gas production, has several potential environmental and economic advantages over coal and oil. However, he also emphasized that these benefits will only fully materialize if natural gas production and distribution is done correctly. He described this qualification as a “big if.”
Quantifying Greenhouse Gas Emissions Throughout the Supply Chain
Many people believe that natural gas can be a gateway fuel to catalyze the United States’ movement away from carbon-intensive fuels and toward a cleaner energy economy because natural gas-fired power plants emit only half as much carbon dioxide (CO2) per megawatt-hour of electricity as do coal fired ones.
Dr. Alvarez confirmed this potential benefit but stressed that CO2 emissions from electricity generation are only part of the story. In fact, natural gas production can also contribute to (worsen) climate change through greenhouse gas emissions that occur during earlier stages of the supply chain.
To fully understand the climate tradeoffs between different fuels, their associated greenhouse gas emissions must be accounted for at each stage of the fuels’ lifecycles, from production to use.
Accounting for Methane Leakage
Natural gas’ climate impacts are not limited to the CO2 emitted during combustion. Rather, natural gas also contributes to climate change if the gas (methane), itself a potent greenhouse gas, escapes or “leaks” to the atmosphere during earlier stages of the supply chain.
In comparing natural gas to coal or oil, it is essential to keep in mind the amounts and different warming properties of both CO2 and methane. Because CO2 and methane persist in the atmosphere on different timescales and contribute different levels of warming, the total emissions of both greenhouse gases from different fossil fuels and the properties of the gases themselves must be accounted for and compared.
Building a More Nuanced Accounting Model for Emissions
Prior studies have used Global Warming Potential (GWP) to compare the relative warming effects of different greenhouse gases and fossil fuels, but Dr. Alvarez argued that GWP can be misleading.
Specifically, because GWP looks at warming effects at only a single point in time (e.g., 100 or 200 years after emissions), it obscures the dynamics of emissions of different greenhouse gases, which, due to their specific lifecycles, create warming impacts on different timescales. For example, over a 100-year period, methane has 25 times the global warming impact of CO2 but if you consider a 20-year period instead, methane’s impacts are 72 times worse. These differences are due to the fact that an individual molecule of methane causes more warming than CO2 in the short-term, but methane also remains in the atmosphere for a comparatively short duration of only 12 years. CO2, on the other hand, causes less warming per molecule, but remains in the atmosphere much longer so its warming effects are more persistent.
To address this limitation, Dr. Alvarez and his colleagues have generated an alternative metric, which they dub Technology Warming Potential (TWP). TWP compares different fuels’ overall contributions to climate change across all greenhouse gases and timeframes. The figure below, taken from Dr. Alvarez’s study, shows the TWP for natural gas relative to three different fuel sources and uses.
The horizontal line on each graph (TWP = 1.0) represents the point at which natural gas has the same climate change impact as the alternative (conventional) fuel source. Points below this line signify that the climate impact of natural gas is less than that of the fuel to which it is being compared; points above signify higher climate impacts. For example, graph C shows that a natural gas power plant has roughly half the global warming impact of a coal power plant over a 200-year time horizon, but at time zero, natural gas’ climate benefits are lower—only 20 percent better than coal due to methane leakage.
Methane Leakage and Uncertainty in Leakage Rates
While the relative CO2 emissions of different fossil fuels are well known, a key unknown in the fuel comparisons is the rate of methane leakage from natural gas wells. Graphs A and B in the figure above assume that the rate of methane leakage from the natural gas supply chain is 3.0 percent of the total gas produced. Graph C assumes that this rate is 2.1 percent (the difference is based on varying assumptions about supply chains). The actual leakage rates are unknown, yet assumptions about natural gas’ benefits rely heavily on these leakage rates. For example, natural gas use in cars would provide climate benefits after 25 years instead of the 80 years shown in graph A if methane leakage were reduced from 3.0 to 2.0 percent. At 1.6 percent or less, natural gas would always have net climate benefits over gasoline.
The methane leakage rate is critical. As shown in the figure below (also from Dr. Alvarez’s study), when methane leakage rates, as represented on the y-axis, are lower, it takes less time to achieve net climate benefits from natural gas. The points at which the curves intersect the y-axis are the leakage thresholds below which natural gas has climate benefits over the conventional fuels for any time scale considered.
Dr. Alvarez emphasized that the threshold levels are not the only important points to consider. If, for example, the leakage rate of methane was found to be 4.0 percent, natural gas power plants would initially be worse for the climate than coal, but they would not be worse forever. In this scenario, beginning around 25 years after the conversion from coal-fired power plants to natural gas-fired ones—and continuing on into the future—there would be net climate benefits from having moved away from coal.
If natural gas is to replace other fossil fuels, then it is critical not only to understand the relative climate impacts of CO2 and methane, but also to find ways to minimize methane leakage in the natural gas supply chain. Dr. Alvarez concluded his presentation by mentioning that EDF is currently working with several companies in the natural gas industry to better measure and reduce the level of uncertainty about methane leakage at every stage of the natural gas production process. During the question and answer session, he mentioned that “green completions” of hydraulically-fractured shale gas wells could be a cost-effective strategy for reducing methane leakage. Green completions represent one key step in resolving the “big if” of whether natural gas production and distribution are being carried out correctly so that the theoretical climate benefits of natural gas can be realized in reality and when considered on any timeframe.
Dr. Alvarez’s powerpoint presentation is available for download here, and the webinar recording is available for viewing here:
What It Takes To Get Sustained Climate Benefits From Natural Gas from YCELP on Vimeo.
Thursday, November 15, 2012
By Josh Galperin
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.
Thursday, November 08, 2012
By Josh Galperin
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.
Monday, November 05, 2012
By Bruce Ho
If you are familiar with shale gas, you probably have heard the argument that this resource has the potential to be a “bridge” between today’s polluting energy mix and a clean energy future. This argument rests on three basic premises: (1) when burned for energy, shale gas, which is natural gas extracted from shale, emits less carbon dioxide and other air pollutants than either coal or petroleum; (2) there are large, economically-available shale gas resources in the U.S. that could be used to displace a significant portion of the coal used in our power sector and, potentially, the petroleum used for transportation; and (3) for technical, economic, or political reasons, renewable energy and savings from energy efficiency cannot yet provide for all of our energy needs – hence the need for a bridge to get from the coal and petroleum of today to the renewables and energy efficiency of tomorrow.
But while this argument makes at least some sense, significant questions remain. For example, how much cleaner is shale gas than coal and petroleum when you consider the full gas production lifecycle, from hydraulic fracturing (“fracking”) to eventual combustion? Further, even if shale gas is a cleaner fossil fuel, what will be the long-term effect of cheap and abundant gas on the adoption of even cleaner energy efficiency and renewables?
Answering these questions is critical to understanding how shale gas fits into the overall U.S. energy mix. Last month, the Yale Center for Environmental Law and Policy began exploring these issues in the inaugural presentation of the Center’s 2012-2013 Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.”
This coming Thursday, November 8 from 12-1pm EST, the Yale Center for Environmental Law and Policy will further explore, through a presentation by Dr. Ramon Alvarez, a senior scientist at the Environmental Defense Fund (EDF), the structural underpinnings of the bridge-to-clean-energy narrative by examining whether shale gas is likely to reduce or only exacerbate climate change. I highly encourage anyone interested in shale gas issues and energy policy more broadly to attend this free online presentation on “What It Takes To Get Sustained Climate Benefits From Natural Gas.” To register for this webinar, click here.
As a preface to Dr. Alvarez’s webinar, I outline below the basic climate case for shale gas as well as two issues that could undermine this case: the possibility that natural gas leakage in the supply chain could, rather than reduce climate change, lead to more global warming; and also the possibility that shale gas might displace cleaner renewable energy and energy efficiency and thus slow the country’s transition away from climate-polluting fossil fuels. Ultimately, understanding these two issues is essential to understanding whether shale gas can be a bridge to a clean energy future or is instead a bridge to nowhere – or worse.
The Basic Climate Case for Shale Gas
Shale gas is not a “clean” fuel. While burning shale gas releases less pollution than coal or petroleum, like any other fossil fuel, burning gas still releases carbon dioxide pollution and contributes to climate change. Moreover, as Yale Professor of Hydrology Jim Saiers discussed in the Center’s first shale gas webinar last month, there are a variety of non-climate related environmental impacts associated with shale gas drilling, including air and water pollution, water usage, and land disturbance. While some of these impacts may be avoidable with proper regulation and industry best practices, some will likely still occur.
Yet the climate case for shale gas does not rely on the total elimination of climate-related impacts. Rather, the climate case is based on the fact that, on a per-unit energy basis, natural gas emits less carbon dioxide than either coal or petroleum (e.g., a kilowatt-hour of electricity generated from natural gas results in less carbon pollution than a kilowatt-hour from coal). Recent data from the U.S. Energy Information Administration (EIA) bear out the potential climate benefits. According to the EIA, natural gas is beginning to displace coal in the power sector, largely as a result of domestic shale gas production. And this shift is at least partly responsible for a decline in carbon pollution from the U.S. energy sector in recent years. (Another significant reason was the recession, which caused total U.S. energy use to fall.) These data support the first two premises of the bridge-to-clean-energy narrative described above. The third premise – that natural gas is needed due to the current limits of renewable energy and energy efficiency – is a matter of debate. But even studies that show that existing clean energy technologies could satisfy U.S. energy needs often acknowledge that this shift is unlikely to occur overnight. Some researchers also argue that fast-starting natural gas power plants can help integrate variable wind and solar energy by helping fill in gaps in renewable generation. If these propositions are true, shale gas could very well help slow the rate of climate change relative to the status quo.
The Unknowns That Could Undermine This Climate Case
The problem is that shale gas’ contributions to climate change are not limited to the carbon dioxide it emits during combustion. Rather, natural gas, which consists primarily of methane, also contributes to climate change when it is released directly to the atmosphere – intentionally or accidentally – without being burned. In fact, methane is itself a potent greenhouse gas, which, in the near-term (20-year time horizon) is more destructive on an individual molecular basis than carbon dioxide by a factor of 50 or more. Carbon dioxide is the main driver of climate change because much more of it is released globally, but if large amounts of methane also “leak” from the shale gas supply chain, the climate impacts of this resource could be significantly higher than the bridge-to-clean-energy narrative assumes.
The current rate of methane leakage from shale gas wells is unknown. According to a study co-authored by Dr. Alvarez in the Proceedings of the National Academy of Sciences, methane leakage estimates range from 2% to more than 7% of total natural gas produced from shale gas wells. Any methane leakage reduces the potential climate benefits of shale gas relative to other fossil fuels. But for shale gas to be less damaging to the climate than coal, the total leakage from gas wells (as achieved through voluntary industry practices or regulatory mandates) would need to be less than 3.2% of the total gas produced. Anything higher than 3.2%, and shale gas could actually accelerate and worsen climate change relative to coal. In comparison to petroleum, which emits less carbon dioxide than coal but more than natural gas, methane leakage rates would need to be even lower to break even.
Further, while methane leakage is a critical issue, it is just one potential way in which shale gas could worsen climate change. If, for example, cheap and abundant shale gas delays the U.S. transition to renewable and more efficient uses of energy, then the net effect regardless of gas’ benefits relative to coal and petroleum might still be to cause more global warming. Of course, as noted earlier, fast-starting natural gas power plants might also help support increased utilization of variable wind and solar energy by being available to operate on short notice should wind or solar production unexpectedly decline (e.g., due to a sudden slowdown in wind velocities or unexpectedly high cloud cover). This is in contrast to coal plants, which can sometimes take days to start generating power. The net climate effect here could be complicated, though the net effect is ultimately what’s important.
Getting to the Bottom Line on Climate
Understanding these unknowns and determining answers is essential to understanding how shale gas fits into the current U.S. energy picture; the types of policies and practices that may be needed to minimize or avoid adverse shale gas impacts; and the role that shale gas may or may not be able to play in helping the U.S. transition to a clean energy economy.
In his presentation on Thursday, Dr. Alvarez will shed additional light on these issues and their complexities as he discusses the frameworks and research needed to ensure that shale gas development, which is already proceeding rapidly, contributes to a more positive rather than a more destructive climate future. In addition to registering to attend this free webinar, you can learn more about Dr. Alvarez’s research by reading his paper in the Proceedings of the National Academy of Sciences as well as his blog. You can also visit EDF’s website to learn more about the organization’s current work on natural gas, including an initiative to measure methane leakage rates from shale gas wells.
Coming up Next in Emerging Issues in Shale Gas Development
As the Emerging Issues in Shale Gas Development webinar series begins to look at specific policy responses to the environmental impacts of shale gas development, I am pleased to announce that the third webinar in this series will feature Florida State University Law Professor Hannah Wiseman, who has written several leading works on the state of U.S. shale gas regulations (e.g., Risk and Response in Fracturing Policy, Fracturing Regulation Applied, and Regulation of Shale Gas Development, Including Hydraulic Fracturing). On Wednesday, December 5, from 3-4pm EST, Professor Wiseman will discuss the current state of U.S. shale gas regulations, regulatory gaps, and ways in which federal, state, and local regulations may need to change. You can register for Professor Wiseman’s webinar on “Understanding and Improving Regulation of Shale Gas Development” by clicking here.
Wednesday, October 31, 2012
By Josh Galperin
Cost benefit analysis (CBA) is a much touted and much debated tool for environmental policymaking. At its foundation, the premise is simple; CBA uses analytical formulas to determine whether the monetized benefits of a proposed regulation outweigh the monetized costs. Where the benefits outweigh the costs, the policy proposal should become a reality. It is the seeming objectivity of CBA that makes it attractive to its proponents.
One such proponent is Professor Ben Trachtenberg of the University of Missouri School of Law. In an article forthcoming in the November/December issue of the Environmental Law Institute's Environmental Forum, Professor Trachtenberg argues that CBA has flaws, but that they are superficial flaws, which can be addressed through tweaks to the process. Specifically, Professor Trachtenberg looks to the way that the value of future human lives are discounted when conducting a CBA. Discounting is based on the economic understanding that people value money more today than in the future. For instance, if I offered $100 in 1 year, or $94 today, most people would accept a smaller sum today. Thus, if an environmental regulation will save a human life not today, but in the future, we need to calculate the value of that life and then discount it to its present value.
Professor Trachtenberg's article argues that CBA would more accurately reflect the costs and benefits of environmental policy if the discount rate were lower, that is, if the value of future lives were reduced less when converted to present value. To support this argument Professor Trachtenberg point to two items: increasing healthcare costs and increasing gross domestic product. As people are willing to pay more to avoid death and as future generations become richer, their theoretical lives become more valuable. Where future lives are more valuable, they should be discounted at a lower rate.
Professor Trachtenberg's assessment is accurate. However, Professor Kysar and I co-authored a brief response, forthcoming in the same issue of the Environmental Forum in which we argue that efforts to mend rather than end CBA in environmental policymaking will not ultimately result in better environmental governance. Efforts such as Professor Trachtenberg's are arguments for changing CBA, but more importantly they are demonstrations of how fragile CBA is.
While CBA is proffered as an objective tool, the tweaks that Professor Trachtenberg identifies are just two among many potential changes, all of which can be subjectively used and abused to change the outcome of a given analysis. CBA, therefore, creates a veil of objectivity over yet another subjective process. This sort of marginal effort will work to marginally improve policy, but it will also work to solidify the role of CBA, for better or worse. In other words, those who strive to give future generations more consideration in environmental rulemaking should take care not to relinquish alternative tools, which rest on more principled grounds, in exchange for temporary relief from the limited capabilities of CBA.
Thursday, October 18, 2012
By Guest Author, Gabe Scheffler, Yale Law School '14
On October 10, in the first event of this year’s Policy Workshop Webinar Series Emerging Issues in Shale Gas Development, Dr. Jim Saiers, Professor and Associate Dean of Academic Affairs at the Yale School of Forestry and Environmental Studies, joined the Yale Center for Environmental Law and Policy to present an overview of shale gas development and its implications for the environment. Focusing on Pennsylvania’s Marcellus region, Professor Saiers discussed the history of shale gas development in the United States, the processes that are used to extract it, and their potential environmental consequences. Throughout the talk, Professor Saiers highlighted the state of existing research and the diversity of opinions on these issues.
Growth in Shale Gas Development
As Professor Saiers noted, the past decade has witnessed a twelve-fold increase in the United States’ shale gas production, and currently, natural gas satisfies about a quarter of the U.S.’s total energy needs. This tremendous growth is due in large part to George Mitchell, the founder of an oil-service company, who pioneered a technique which combines horizontal drilling with high-volume slick water fracturing to reach and extract shale gas deposits.
Shale gas extraction has several stages. Before gas companies can commence drilling, they first must lease land, acquire the relevant permits, and prepare the drilling site (an intensive process that can involve clear-cutting forests or “re-engineering” the landscape to accommodate the drilling pad). The drilling and casing process takes several weeks. In the Marcellus shale, a well may extend 5,000 to 7,000 feet underground before turning horizontally. Cement casing must also be installed to maintain the integrity of the wellbore and to isolate it from surrounding water aquifers. Hydraulic fracturing or “fracking” involves shooting holes in the lateral portion of the casing with a perforation gun, and then pumping large volumes of a water-based fluid containing chemicals and sand through the borehole and out of the perforations in the casing at high pressures. This increases the fluid pressure within the shale formation and generates fractures.
Potential Environmental Impacts
This process has a number of potential environmental implications. One, featured prominently in the movie Gasland, is that the methane released during extraction could contaminate household drinking water. Professor Saiers observed that if gas wells are improperly cased, then methane can indeed migrate along the borehole and escape into drinking water aquifers. However, he cautioned that these leaks can be avoided by following best practices, and noted that methane sometimes occurs naturally in aquifers or could originate from abandoned oil and gas wells not associated with fracking.
Another concern is that the chemicals used in fracking will contaminate groundwater. Yet the seriousness of this risk is a subject of dispute. For example, Rebecca Wodder, President Obama’s former nominee for Assistant Secretary of Interior for Fish, Wildlife, and Parks, has charged that fracking creates a toxic chemical soup that pollutes groundwater and streams. By contrast, Lisa Jackson, the Administrator of the U.S. Environmental Protection Agency, has stated that she is not aware of any proven case in which the fracking process itself has affected water. Professor Saiers conceded that it’s difficult to reconcile these opposing views. However, he observed that the most likely way contamination would occur would be through surface spills and “flow-back” of frac-water, which could happen during transportation, through accidental releases at the drill sites, or because of leaks in the pits that store flow-back water.
An additional concern is the impact that shale gas has on the climate. While burning gas is cleaner than combusting coal, the carbon emissions footprint of burning gas is still non-negligible (roughly 50% of the carbon emissions from coal). Moreover, the process used to extract shale gas can release or “leak” this gas, a.k.a. methane, which is itself an extremely potent greenhouse gas, into the atmosphere. Unfortunately, estimates of how much methane is released during the extraction process vary dramatically. Thus, more research on this subject is urgently needed, since the total climate impact of natural gas development depends to a great extent on the magnitude of this methane leakage. (This critical issue will be the subject of the second webinar in the Emerging Issues in Shale Gas Development series from 12-1pm EST on Thursday, November 8, when Dr. Ramon Alvarez discusses “What It Takes To Get Sustained Climate Benefits from Natural Gas.”)
Shale gas development could have other negative environmental consequences as well, including landscape disturbance and decreased air quality. During the Q&A session following Professor Saiers’ presentation, one question also concerned the potential of fracking to lead to earthquakes. Professor Saiers stated that there is a general scientific consensus that fracking can induce some small amounts of seismic activity, but that current research suggests that it may do so at a level that is not threatening. Professor Saiers also discussed the large volumes of water used in fracking, and noted that the impact of this practice will vary depending on regional water availability.
Overall, Professor Saiers presented a relatively optimistic view of the potential to develop shale gas, particularly in the Marcellus region, in an environmentally responsible manner. However, he cautioned that more research is still needed on shale gas’ environmental impacts, and that proper regulatory controls and industry best practices (e.g., proper well construction standards, drilling at depths that are sufficiently below drinking water aquifers, and monitoring around gas wells) are necessary to prevent environmental harms. Based on our current understanding, Professor Saiers believes that shale gas can be produced safely if the right safeguards are in place, and he maintained that current development does appear to be safe in a large number of cases.
Future webinars in the Emerging Issues in Shale Gas Development series will continue to explore these critical issues of environmental science and policy. A recording of Professor Saiers’ webinar presentation is available for viewing here:
 “America’s Bounty: Gas Works,” The Economist, July 14, 2012, http://www.economist.com/node/21558459
 For example, in a recent interview with Yale Center for Environmental Law and Policy Fellow Bruce Ho, Dr. Sheila Olmstead from Resources for the Future mentioned that habitat fragmentation as a result of increased shale gas development is a potentially significant environmental impact that has yet to be fully considered. The Nature Conservancy is one organization that has been looking at this issue.
Friday, October 12, 2012
By Josh Galperin
The Yale Center for Environmental Law and Policy congratulates the 2012 Switzer Fellows, two of whom are associated with the Center: Angel Hsu and Stephanie Safdi.
The Switzer Environmental Fellowship is a program of the Robert and Patricia Switzer foundation. According to the Foundation the Fellowship “recognizes the achievements of environmental leaders and their potential to drive positive change.” In total the Foundation awarded 20 fellowships this year, meaning that students associated the Yale Center for Environmental Law and Policy account for 20 percent of the entire Switzer Fellow population.
Angel Hsu is a doctoral candidate at the Yale School of Forestry and Environmental Studies as well as the Program Manager of the Environmental Performance Measurement program at the Center. The Fellowship recognizes Angel’s efforts to create environmental solutions through objective environmental performance measurement and the use of quantitative data and scientific approaches to guide environmental policymaking.
Stephanie Safdi is a joint student between Yale Law School and the School of Forestry and Environmental Studies. She is the founder of the New Directions in Environmental Law conference hosted at Yale Law School each year and sponsored by the Yale Environmental Law Association and the Center for Environmental Law and Policy. Stephanie earned the 2012 Fellowship for her work to advance environmental justice, connecting environmental, health, and human rights law both domestically and internationally.
Leah Butler, Jennifer Gaddis and Molly Greene, all graduate students at the Forestry School, and Reed Schuler from Yale Law School were also awarded Switzer Fellowships this year.
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
In our cities the byproducts of combustion (in our engines and power plants) meet with the byproducts of life - plant resin off-gases, air-born dusts and sands, ocean sprays and sea salt mists - to create a complex mixture of chemicals that can be harmful to human health. As Gabriel Isaacman and I reported in the Atlantic last month, even so-called pristine landscapes are not free from this effect.
And that begs the question: what are we to make of natural sources of air pollutants? This was a question posed during the first day of the International Workshop for a Better EPI: Towards a Next Generation of Air Quality Monitoring, held last week at Seoul National University in Korea.
Small diameter particulate matter, so-called PM 10 (less than 10 microns in diameter) and PM 2.5 (less than 2.5 microns), are air pollutants of particular concern. These particles, which can be anything small, from grains of desert dust to particles of coal ash, are small enough to bypass the lung’s natural filters (hairs in your nose, mucus in your throat). They burrow deep into the vulnerable tissues of the lung, where whatever radioactive particles or heavy metals they brought with them can wreck havoc on easily damaged soft tissue.
All particulate matter, generally, is harmful to human health. At least according to Michael Krzyanowski of the World Health Organization, who presented on global PM monitoring efforts at the conference.
“Epidemiological studies have tried to separate the specific effects of the different components of PM,” he said, referring to efforts to clarify human health outcomes related to PM derived from cars from those related to PM derived from plants. “Either we aren’t there with research,” he said, “Or PM is just too complicated to separate.”
Because we can control the PM that is human-produced, either by limiting power plant emissions or driving fewer car miles, some participants at the conference argued that we should only consider these sources of PM in national inventories and performance metrics. Countries cannot, generally, limit the PM produced by an ocean breeze or a desert storm - they should not be penalized, or criticized, the argument goes, for having high PM levels from these sources.
These are fair criticisms. PM levels are currently a leading indicator in our Environmental Performance Index, which ranks the countries of the world on measures of environmental quality. And it is also a pollutant required for control under most rigorous air pollution programs around the world.
But there is evidence that natural PM sources are as harmful to human health as non-natural. In other words, “we don’t have evidence that non-anthropogenic PM is not-health relevant,” Krzyanowski said. As such, it is problematic to simply remove this source from environmental metrics.
“Health warnings should include Sahara dust in an index,” Krzyanowski argued, just as much as dust from construction or car emissions. “Yes that is hard to address in management. But it is still important for human health.”
There is no easy answer to this question – what pollutant sources to include in measurements and indices – but later versions of our own EPI may well seek to differentiate among these measures to create a more sophisticated measure of country-by-country managements obligations and public health risks.
Thursday, October 11, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
Pollution does not respect borders.
This old adage is one of the first messages to arise from last week’s International Workshop for a Better Environmental Performance Index (EPI): Towards a Next Generation of Air Quality Monitoring – a workshop jointly hosted by Yale and Columbia Universities and the Asian Institute for Energy, Environment and Sustainability at the Seoul National University in Korea.
During a technical session on monitoring and modeling of heavy metals, Dr. Seung-Muk Yi of Seoul National University presented his research findings on the sources and movement of mercury in the Korean environment. His findings were stark.
Mercury is typically released into the air when fossil fuels containing mercury are burned for power generation. Though South Korean emissions of mercury are about one-tenth that of US emissions (18.5 tons a year compared to 143 tons a year), average blood mercury concentrations in Korean citizens are five times greater than average US concentrations.
As Dr. Yi presented, one-third of Koreans have blood mercury levels above those deemed safe by US health guidelines – putting them at risk for neurological health effects and neurodegenerative disorders.
What accounts for this looming public health threat?
Two phenomena combine in Korea to create this potential health disaster:
1. Koreans consume a lot of seafood (74-95 grams a day, about five times the US average); and
2. Korea is near China.
According to Dr. Yi, China’s annual emissions of mercury are nearly four times greater than the US’s and nearly 30 times greater than Korea’s.
By tracing mercury concentration changes over time across monitoring sites within Korea, scientists in Seoul were able to implicate Chinese emissions in Korea’s pollutant problems.
“As our local emissions went down [following new regulations],” he said, “mercury concentrations in our rural and remote stations remained constant.”
China contributed the most to our high mercury events, he said, noting that more than 60 percent of high mercury events in Seoul, when government air monitors detected unusually acute mercury levels in the air, were the result of air masses carried from China.
Coal combustion in Hunan, metal smelting in Guizhou, and dust storms in the Gobi Desert were all implicated in Korea’s pollution problem. Meaning what happens in China doesn’t stay in China.
Lessons like this – an old lesson made new - underscore the importance of international workshops like this one where atmospheric scientists, chemical engineers, and policy experts from around the world wrestled with the very modern problem of global pollution. Hopefully, the knowledge generated here in Seoul won’t stay here.
Wednesday, October 10, 2012
By Josh Galperin
Most have likely seen the green and white bumpersticker declaring “No Farms No Food”. Without reservation I support the message of American Farmland Trust, the group that created and distributes this sticker. In the words of American Farmland Trust:
“The message is simple and couldn't be more clear—America's farms and ranches provide an unparalleled abundance of fresh, healthy and local food, but they are rapidly disappearing.
Ninety-one percent of America’s fruit and seventy-eight percent of our vegetables are grown near metro regions, where they are in the path of development. And America has been losing more than an acre of farmland every minute. That's why supporting local food and farms is more important than ever!”
Recently, however, I was walking to work when I passed a truck that donned the green and white sticker as well as the familiar red and black bumper sticker showing support for the National Rifle Association. Seeing these two stickers side by side, it occurred to me that the message “no farms no food” simply isn’t true. Take a quick trip to NRA.org and you will see that hunting is a pillar of their mission.
There is, in fact, food without farms and it comes from, among other places, hunting wild animals, or harvesting wild plants.
Research suggests that human agriculture arose around nine thousand years ago. For the sake of argument, let’s round that to ten or even 20 thousand years ago. Homo sapiens have been on earth for somewhere around 200,000 years. That means that for over 180,000 years there were no farms, but there was food.
It would take too long to list all the incredible benefits of agriculture; suffice it to say that agriculture is more than just a critical part of human life today. The American Farmland Trust and likeminded organizations similarly play a critical role in reminding us that our food does come from somewhere— typically a farm—and awareness about the origins of our food is important to protecting the source. By and large that source is farms, but it is worth remembering that there is more to our food system than farms alone. To sustain our broader environment and our complete food system we need to remember the boar, bass and berries that can also nourish us.
Monday, October 08, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
This spring the US Department of Transportation has, with the stroke of a pen, changed longstanding federal policy. In the past, retired Naval vessels potentially contaminated with dangerous toxins had been made available for the creation of artificial fish reefs. Now vessels built before 1985 – those potentially contaminated with polychlorinated biphenols (PBCs) - will no longer be considered for use in artificial reefs. This is a victory for human health and the health of our oceans.
This policy change resulted from, among other actions, research undertaken by graduate students in the Environmental Protection Clinic at the Yale Law School and Yale School of Forestry & Environmental Studies, who worked with the Natural Resources Defense Council to oppose efforts to sink a particularly troubling former Naval vessel, the ex-USS Kawishiwi, off the coast of California.
The USS Kawishiwi was a uniquely American vessel: named for a Minnesota river, built in a New Jersey shipyard, and commissioned in a Philadelphia Naval base, this seven million gallon oil carrier served the 7th Fleet in the Pacific for more than 30 years of the Cold War. In 1979 it retired from active US duty. In 1992 it entered the Suisun Bay Reserve Fleet (one of three federal storage sites for America’s mothballing “national defense reserve” ships). And in 2011 it became available for artificial reefing. In ancient Japan, stones were rolled into the ocean to provide substrate for reefs and new homes for reef fish. Now we sink ships.
In addition to the hydrocarbon residues of a half-century of marine diesel fuel to be found in its tanks, the ex-USS Kawishiwi likely contains heavy metals (mercury, lead, barium, and cadmium) in its guidance systems, light switches, radar displays, and hull paints. Hydrocarbons and heavy metals are, respectively, carcinogens and neurotoxins. Polychlorinated Biphenols (PCBs) – carcinogenic, mutagenic, and teratogenic bioaccumulators (meaning they are passed upward in food chains) - will be found in the ship’s boiler rooms, radio rooms, engine rooms, and weapons rooms, as well as in its adhesive tapes, switchboards, insulators, capacitors, and transformers. Anything made of plastic in the ship will likely contain PCBs.
If it had been sunk in California state waters this year, as planned, the former USS Kawishiwi would have been the 9th such ship intentionally sunk off California, and the 5th sunk to create a reef, in the last 30 years. Though it is unclear what effect this new reef would have had on fish communities, or the dive enthusiasts who supported its creation, it is clear that any contaminants that would have survived a ship cleaning (there would have been many) would have sloughed from the ship, leeched into the ocean, and settled comfortably in the fatty tissues of marine organisms throughout the nearby water column. Eventually these contaminants would have made their way back onshore, to accumulate in the bodies of the terrestrial mammals that first commissioned them to the sea.
Through a letter of complaint based on our research, sent to the Department of Transportation’s Maritime Administrator, the Natural Resources Defense Council officially opposed the planned sinking. Through a Freedom of Information Act request we have now learned that not only will the USS Kawishiwi no longer be considered “available for reefing” but federal policy has also officially changed - all ships owned by the Department of Transportation (there are more than 40 left in reserve) cannot be considered for reefing if they were built before 1985 (the year at which PCBs are no longer likely to be ubiquitous onboard) and will, generally, be locked into recycling plans if recycling is possible. This is a policy change guaranteed to better protect human health and the health of our oceans. And these ships are now, incidentally, more likely to create jobs (through recycling) and save taxpayers money (reefing is expensive).
Miles to go
Though old, toxic naval vessels will no longer be available for use in artificial reefs, our government is still sinking decommissioned vessels at an alarming rate. The Navy training program SINKEX, or “sinking exercise,” uses former vessels for target practice and ordinance tests. Over the last fifty years dozens of potentially contaminated vessels have been sunk in US waters under the SINKEX program. Last summer the Navy sunk three off the coast of Hawaii. This fall holds plans for another sinking.
Though these ships are often cleaned to the best EPA guidelines, full removal of dangerous toxics is impossibly difficult. The toxins that went down with a recently sunk ship, the ex-USS Oriskany, have now been found in the tissue of fish surrounding the wreck.
Is the SINKEX program worth the risks it poses to human health? Are there better ends for these ships (including recycling, which creates jobs and drives economic activity)? These are the questions at the heart of an open lawsuit against the EPA, filed by Earthjustice on behalf of a coalition of environmental groups late last year, which demands that the agency better regulate potentially harmful ship sinks.
With high uncertainty surrounding the safety of these sunken vessels, now might be time for more debate and fewer reefs. The Department of Transportation’s policy change was movement in the right direction, but we still have miles to go.
Sunday, October 07, 2012
By Guest Author, Bruce Ho, Environmental Law & Policy Fellow
Earlier this year, the U.S. Energy Information Administration (EIA) predicted that within the next decade the U.S. will become a net exporter of natural gas for the first time since the 1950s. This marks a dramatic shift from only a few years ago when the EIA predicted that domestic natural gas demand would continue to outstrip supplies and that U.S. natural gas imports would rise with seemingly no end in sight. Even as recently as 2011, the EIA predicted that the U.S. would remain a net importer of gas through at least 2035.
So what happened? The answer, quite simply, is shale gas.
The figure to the left, from the EIA Annual Energy Outlook for 2006, 2009, and 2012, details (a) projected imports in 2006 before the shale gas boom; (b) projected imports in 2009 near the beginning of the boom; and (c) projected imports in 2012. LNG is liquefied natural gas.
Until recently, shale gas, which is natural gas produced from shale, had not been an economically recoverable resource. But now, new technologies and techniques – namely horizontal drilling and hydraulic fracturing, or “fracking” – are providing ready access to domestic shale gas reserves. Many commentators have hailed this development, which is upending energy markets, as a game changer for the environment. Abundant shale gas, they argue, will help protect the environment by providing a cheaper, cleaner energy alternative to dirty-burning coal. Supporters also argue that cheap and abundant gas is a boon for the economy, energy independence, and national security.
Yet as Yale Center for Environmental Law and Policy (YCELP) Associate Director Josh Galperin recently noted, many others are concerned that shale gas development is proceeding full bore without sufficient understanding of the environmental consequences associated, not with its burning, but with its extraction, including air and water pollution and significant water use requirements. Moreover, while burning natural gas releases less carbon dioxide than other fossil fuels, it still contributes to climate change, and natural gas (which is simply methane) is itself a potent global warming pollutant. Uncertainty about the level of methane that escapes to the atmosphere during drilling and from leaks in the supply chain means that the climate benefits from shale gas are still far from certain.
YCELP's Policy Workshop Seminar Series: Emerging Issues in Shale Gas Development
This year, YCELP will explore the rapid rise in production of domestic shale gas and its potentially significant effects on environmental and energy policy through our second annual Policy Workshop Webinar Series. This year’s series, which focuses on “Emerging Issues in Shale Gas Development,” will consider shale gas opportunities, risks, and uncertainties through presentations by experts from a variety of sectors and fields. The series aims to provide participants with the latest scientific knowledge and policy expertise, and all webinars, which will be conducted entirely online, are free and open to the public (though registration is required to receive the log-in details), and will also be archived for later viewing.
Toward this end, YCELP is excited to begin the Emerging Issues in Shale Gas Development series with a trio of fall semester speakers, who will introduce and address a variety of important topics:
· On Wednesday, October 10 from 4-5pm EDT, Yale Professor of Hydrology Jim Saiers will provide an overview of the latest science on the environmental impacts of shale gas extraction through fracking. Interested individuals can register to participate in this webinar by clicking here.
· Professor Saiers will be followed on Thursday, November 8, from 12-1pm EST, by Ramon Alvarez, a senior scientist at the Environmental Defense Fund, who will discuss the potential climate benefits and challenges posed by the shale gas boom.
· And finally, the fall semester line-up will conclude on Thursday, December 6, from 12-1pm EST, with Bill Dornbos, YCELP’s previous Associate Director and now the Connecticut Director of Environment Northeast, who will discuss the current regulatory structure for shale gas development as well as the effects that this development is already having on state energy planning.
A full roster of additional webinar speakers will follow in the spring.
As a prelude to the series, YCELP recently sat down with Sheila Olmstead, who is a Fellow at Resources for the Future, to discuss some of the implications of the shale gas boom.
As this interview attests, the shale gas boom has already begun, but as the EIA’s changing figures reveal, the future is also difficult to predict. Whether domestic shale gas development will continue to grow rapidly, as suggested by the EIA’s most recent figures, or proceeds instead on some other trajectory, will depend in large part on resolution of the uncertainties that will be discussed in our upcoming series.
Monday, October 01, 2012
By Guest Author, Josh Galperin, YCELP Associate Director
These days it seems there is constant release of new information about hydraulic fracturing. Recent news from a federal court in New York, however, is a departure from this trend. A September 24th ruling in State of New York v. U.S. Army Corps of Engineers has rejected an attempt to require officials at the Delaware River Basin Commission (DRBC) to gather and release potentially valuable new information on the anticipated effects of hydraulic fracturing on the Delaware River Basin.
The Delaware River Basin is a coveted landscape that provides drinking water to New York City and Philadelphia, among other locales. Because the water resources of the Basin are important to multiple states and communities, they are cooperatively governed by the DRBC.
Underlying much of the Delaware River Basin is the Marcellus Shale, a rich source of natural gas that has only recently become available and economic to exploit. Recognizing the potential environmental, economic and cultural impacts of significant new shale gas development, in 2010, DRBC began the process of developing regulations regarding natural gas extraction within the Basin. DRBC also determined that it would not permit any gas extraction in the Basin until such time as it adopts final regulations. Over the past two years DRBC has drafted and proposed – but not yet voted to adopt – new regulations that would lift the current ban on natural gas extraction in the Basin and permit regulated drilling.
In this interim period, the State of New York and a number of NGOs sued DRBC (and a series of federal partners) claiming that the National Environmental Policy Act (NEPA) requires DRBC to prepare an Environmental Impact Statement (EIS) detailing the potential impacts of its proposed gas drilling regulations.
Generally speaking, NEPA requires federal agencies to prepare an EIS whenever they are undertaking a project that will have significant environmental impacts. In the EIS, the federal agency considers the environmental implications of its project and evaluates possible alternatives. One important benefit of the EIS is that it is a single, comprehensive source for an abundance of data and information on the environmental impacts of a proposed federal project or program.
Unfortunately, the U.S. District Court for the Eastern District of New York ruled on September 24th that New York State and the other plaintiffs cannot continue a lawsuit that might have forced DRBC to complete an EIS at this stage. This decision not only delays DRBC’s potential obligation to perform environmental review, but ratifies DRBC’s poor planning, which so far has proceeded with development of regulations without the benefit of an environmental review.
The primary question that the court addressed was whether New York State and the other plaintiffs would suffer injury if DRBC did not complete an EIS. In similar situations, other courts ruled that failure to complete an EIS could lead to “uninformed decisionmaking,” which amounts to an injury, and, because of this injury, past lawsuits were allowed to move forward. However, the court here looked critically at the past cases and found that “in each case, the government had acted in the form of a final order, regulation, plan, denial of a request, or statute.” In other words, the court determined that failure to complete an EIS could only injure a plaintiff when it is attached “to an actual agency action,” which, according to the court, has not yet occurred in the DRBC case.
This reasoning appears strained. NEPA is designed to inform decisionmaking, and most federal agencies, at a minimum, recommend that the required environmental review happen at an early stage of project development. Here, the court found that a review is not required before an “actual agency action.” Yet there is no reason that issuance of draft regulations could not be considered sufficiently “actual.” Issuance of proposed regulations should suffice because it is at this point that potentially injured parties will become fully aware of the existence and scope of the impending injury. In fact, at least one other court has specifically agreed that proposed action is enough to present a real threat of uninformed decisionmaking.
The court here sets up a straw man, saying that it “believes that the reasoning [of other courts, allowing plaintiffs to sue for failure to complete an EIS] cannot be extended indefinitely backward, to embrace internal agency deliberations, drafts or legal analysis . . .” But the official public issuance of proposed regulations is certainly more substantial than internal drafts, deliberations or legal analysis.
In reality, the threat of uninformed decisionmaking arises as soon as decisionmakers begin to consider regulations without the benefit of an EIS. As the court noted, it is not practical to require an EIS at very early stages, in part because there is not any concrete government action associated with early deliberations. Conversely, though, when an agency officially issues proposed regulations without an EIS, it is clear that the agency developed these regulations without complete information, and this is when the actionable threat emerges.
Aside from the legal arguments, the real trouble here is that the basis for this lawsuit was not merely a battle of pro- and anti-fracking factions. Rather, it was an effort to gather information, to put as much transparent analysis as possible into the public sphere, and to improve decisionmaking. As it stands, the fracking debate is heated but largely under-informed. A great many questions about fracking’s air quality, climate, community, water use, wastewater, groundwater, economic and electricity generation impacts are still unanswered. Had this lawsuit turned out differently, it could have led to important new insights.
Thanks to Bruce Ho, Research Scholar in Law, Coca-Cola World Fund Faculty Fellow, and Clinical Lecturer in Law at Yale Law School for his contributions to this post.
 State of New York v. U.S. Army Corps of Eng’rs, United States District Court for the Eastern District of New York, 11-CV-2599 (Sept. 24, 2012).
 Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002).
 See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir. 2006).