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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
Monday, November 19, 2012
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Troubling Trends for South Africa

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).[1]  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.”[2] We agree. Now might be time for South Africa to lead the way.



[1]
http://www.eia.gov/electricity/monthly/

[2]http://www.cop17-cmp7durban.com/downloads/news/speeches/en/111206_cop17_hls_jacob_zuma.pdf

Posted in: Environmental Performance Measurement
Friday, November 16, 2012
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Webinar Recap: Capturing Climate Benefits from Natural Gas

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.

Summing Up

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.

Posted in: Energy & Climate
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
Monday, November 05, 2012
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Shale Gas: A Bridge to Which Climate Future?

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.

Posted in: Energy & 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
Thursday, October 18, 2012
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Webinar Recap: Shale Gas Development and Its Environmental Implications

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.[1]

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.[2]  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.

Summing up

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:

 

 

[1] “America’s Bounty: Gas Works,” The Economist, July 14, 2012, http://www.economist.com/node/21558459

[2] 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.

Posted in: Energy & Climate

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