Posted on May 20, 2016
August 25, 2016 is the 100th anniversary of the National Park Service. The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us. As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park. I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.
As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession. Why – and how – we do what we do? What challenges will the next 100 years hold?
I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond. Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself). Sadly, we lost Henry earlier this year.
Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it. We have made progress, but new challenges have emerged. Easy answers, if they ever existed, are fewer and farther between. So what, then, does the future hold for the next generation of environmental lawyers?
Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals. As an example, we can look to the past. Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962. Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands. Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges. While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities. Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion.
I expect climate change will dominate the agenda for the young lawyers of our current era. They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change. Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.
We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties. Autonomous vehicles and drones also pose novel environmental and land use issues. These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate. As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions. Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions. Only in this way can the environmental bar forge new solutions to emerging challenges.
The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore. From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection. As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions. This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.
Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response. With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide. With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.
Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”). I commend that article to you. It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come. Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference. In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015. The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law. I hope it may inspire ACOEL members and others to follow Henry’s lead.
These are just a few things I think the future holds for environmental lawyers. What trends do you predict? How should the environmental bar and ACOEL respond?
Posted on February 2, 2016
Tensions ran high in eastern Oregon in early January 2016 as an armed group seized the headquarters of a national wildlife refuge. The occupation began as a protest of the sentencing of ranchers who were convicted of arson on federal lands in Oregon. The occupation subsequently became a rally for opening federal public lands to all. Entering the fray, albeit indirectly, the Ninth Circuit in its January 15, 2016 decision in United States v. Hage, held that defendants’ unauthorized grazing of cattle on federal lands in Nevada was unlawful. Contrary to the views of the Oregon occupiers that they are defending the Constitution, the Ninth Circuit held that grazing cattle without a grazing permit violated federal statutes as well as the state law of trespass, noting that a grazing permit is “a revocable privilege” and is not a “property right.” The Ninth Circuit rejected the district court’s ruling that the government cannot claim trespass if the cattle stayed within a reasonable distance of a source to which defendants had water rights. Concluding that the district judge “harbored animus toward the federal agencies,” the Ninth Circuit requested the Chief Judge of the Northern District of Nevada to assign the case to a different judge on remand. Meanwhile, back in Oregon, several of the protesters have been arrested. One was killed.
Posted on August 5, 2014
On September 3, the Wilderness Act turns 50 years old. This milestone marks the beginning of the golden anniversaries for the golden age of environmental statutes. During the next dozen years we will celebrate the 50th anniversary of the National Environmental Policy Act (1970), the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), the Resource Conservation and Recovery Act (1976), the National Forest Management Act (1976), the Federal Lands Policy and Management Act (1976), and soon after, the Superfund statute (1980). These 50th anniversaries are a time to reflect on the success and failures of each statute, as well as their capabilities to adapt to environmental issues that were hardly contemplated a half century ago. Although the Wilderness Act does not receive the air time as its media-specific cousins, it still is a useful model to evaluate an environmental statute as it reaches this vintage.
Today it seems almost incomprehensible that any federal statute of significance could pass a house of Congress with only one dissenting vote. Yet that’s what occurred when the House passed the bill in 1964 after eight years of debate and countless revisions. The Act probably never would have reached its current form were it not for the tireless work of Howard Zahniser and the decades of support dating back to legendary figures such as Bob Marshall and Aldo Leopold and others. With this legacy, it's not surprising that Act’s language defining “wilderness” borders on prose:
A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and community of life are untrammeled by man, where man himself is a visitor who does not remain.
The Wilderness Act is elegant in its simplicity, yet enormous in geographic scope. On the day of its enactment, the Act immediately designated 9.1 million acres, mostly in National Forests that already were managed as primitive areas. Since 1964, formal wilderness designation has grown to nearly 110 million acres in more than 750 different named areas.
Structurally the Act sets criteria for wilderness, reserves to Congress the authority to designate wilderness, and sets guidelines for management. The guidelines take the form of rigid categories of what can and cannot occur in a wilderness area. Generally that means no roads, few structures and no forms of mechanical transportation. The Act’s guidelines do not contain numeric standards, detailed permitting, or stringent enforcement regimes. This is not surprising because, unlike the media specific statutes like the Clean Air Act and Clean Water Act, the Wilderness Act was not intended to correct problems of the past, but instead is designed to preserve for the future a resource that was perceived to be vanishing.
*Click here to read full article*
Posted on February 7, 2014
The Western states face two reciprocating and overarching problems in water resources policy. First, water is an increasingly scarce resource facing sharply competitive needs. Climate change is projected to put even more strain on water supplies. Second, most streams listed as water-quality impaired in the West are designated as such for issues related to the biological integrity of the waterway. The combination of aggressive human use of waters, manipulation of stream channels, and failure to control agricultural runoff has resulted in widespread degradation of aquatic habitat.
The primary impediment to addressing these related issues arises from dated legal constructs designed to achieve different objectives in eras with markedly different economies. In other words, trying to apply these constructs to today’s problems is like attempting to fit square pegs into round holes.
The doctrine of prior appropriation governs water rights everywhere in the West. It was developed in the 19th century to promote mining and agriculture—both water intensive enterprises—in arid climates. The doctrine provides that the first to physically take control of the water and put it to beneficial use has priority over later comers. Thus, the oldest water rights with the highest priorities are mostly agricultural, and many streams have become over-appropriated during the past century. So where does a growing community go for new water supplies? And what about maintaining sufficient high-quality flows instream for healthy fisheries?
The problem is made more acute by the formidable costs and regulatory uncertainty of developing major water storage projects. Many cities seek to acquire or share in old agricultural water rights through direct payments to water right holders or they finance irrigation system improvements for more efficient use of water. Such water marketing approaches free up water for municipal use, while reducing pressure to remove still more water from oversubscribed streams. But if a legislature could have anticipated then what we know now, might it a century ago have considered systems that allocate water based more on maximum public value and efficient use, rather than simply priority in time?
The Clean Water Act was enacted over 40 years ago to address toxic discharges of industrial and sewage wastewater to rivers and lakes. Dramatic events like the spontaneous ignition of the Cuyahoga River drove public demand for government intervention, leading to the new law. The Act has done a remarkable job of cleaning up end-of-pipe discharges (point sources), but has largely failed at controlling more diffuse sources of pollution (nonpoint sources) from stream channelization, devegetation of riparian habitat and agricultural runoff. Thus, many streams today are impaired by turbidity, nutrient loading, and higher temperatures.
Since the Act does not provide enforcement tools for nonpoint sources, regulatory agencies use the authority available to them to ratchet up controls on point sources. One solution to this problem is water-quality trading, in which a point source permittee can take watershed-restorative action upstream to correct a nonpoint pollution problem in order to meet escalating permit requirements. This approach can yield better ecological outcomes at lower cost. But if Congress were drafting the Clean Water Act today, any rational approach would address the problem of diffuse sources of pollution.
It seems unrealistic to expect substantive changes to either the law of prior appropriation or the Clean Water Act any time soon. Aside from the politics, changes to prior appropriation raise significant constitutional questions to the extent property rights are affected. In the meantime, we’ll have to continue looking for creative workarounds. This circumstance makes interesting work for lawyers, but is hardly the optimal approach to effective water resource use and protection.
Posted on August 21, 2013
Since one of the objectives of the ACOEL blog is to promote thought and discussion, I have decided to plunge in with abandon. Hopefully the objective of promoting discourse will be met.
We all have reconciled ourselves to the fact that environmental advocacy has become very politicized on all portions of the political spectrum—so much so, that environmental advocacy oftentimes morphs into political/partisan advocacy. In the last several years we have seen environmental advocacy reach a new level. I leave it to the reader to decide whether that level is high or low. I have my point of view, and I suspect the reader will see that soon enough.
Two projects, one proposed, and one still only in the realm of “contemplation” serve as lightning rods for this new form of environmental advocacy: the Keystone XL Pipeline project and the potential Pebble Mine. Keystone XL formally has been proposed. The Pebble Mine has yet to have a permit application submitted but nonetheless is the subject of protracted and unique opposition.
It is becoming increasingly common to witness the advocacy relating to the Keystone XL Pipeline project—unprecedented in both its breadth and emotional intensity--from proponents and opponents alike. Proponents have tended to follow the more traditional advocacy approach of published opinion pieces and structured meetings and association support. The opposition has been much less traditional. Certainly there has been a history of focused opposition to some projects viewed by some as adversely impacting the environment, but those have been very focused locally or at most regionally. We all recall “tree sitters” opposing harvesting of redwood timber. Street theatre is not uncommon. Here in Michigan I have seen an individual dressed up as a skeleton in opposition to use of a school built on an abandoned municipal landfill, or dressed up as a fish in opposition to a proposed hard rock mine. The call for civil disobedience in opposition to Keystone XL goes well beyond street theatre, however. It is something that has not been seen, at least in my memory, since the days of the Civil Rights and Vietnam War protests. Lost in all of the demonizing of the development of hydrocarbons in Alberta, Canada’s northern reaches (called “oil sands” by proponents and “tar sands” by opponents) is the fundamental impact that a denial of the Presidential Permit necessary to construct the pipeline will have on the diplomatic relationship between Canada and the United States. The failure to issue a permit thus far has contributed substantially to a reconsideration of Canadian policy goals and economic development. No longer is the Canadian policy as focused and U.S.-centric as it once was. Canada is reevaluating the degree to which it can continue to trust its southern neighbor. It is not a stretch of the imagination to read the tone and tenor of the “policy” discussion and advocacy antics as being officious. An offer to “help” with the evaluation of the climate change risk of the bitumen production and methods of amelioration, while perhaps well-intentioned, certainly is capable of being seen as sanctimonious, or even arrogant. The old images of the “ugly capitalist”, and the “ugly American” are being supplemented by images of the “ugly environmentalist.” The increasingly strident nature of the anti-Keystone advocacy ignores or dismisses broader foreign policy considerations.
Now, if that is not enough to get discussion going, I don’t know what is. But, on the off chance that there is need for more encouragement, let me raise one other advocacy project: the contemplated Pebble Mine located in the Bristol Bay, Alaska, watershed. Pebble Mine may not be as well-known nationally as Keystone XL, but some NGOs are trying to make certain that it does become known—and opposed. If Pebble is known for anything, it is that it is the subject of an environmental assessment being undertaken by U.S. EPA, in advance of any permit application having been filed and without any proposed mining plan having been developed. Now Pebble has a major mail order retailer using its customer-based mailing list vigorously and bluntly to oppose the Pebble project. Within the last several weeks I received a “fly fishing” catalogue from this company, a company from which I have purchased products for well over 30 years. I started seeing full-page advertisements opposed to Pebble in the interior of its catalogues within the last year. This most recent mailing is the first time I received a catalogue whose cover was emblazoned with the words “Pebble Mine” inside a red circle with a slash through it and the admonition to “JOIN THE FIGHT” at the company’s website.
In an age where social issues are increasingly being highlighted in commercial advertisements, perhaps I have been lulled into thinking that subtlety makes such advertising acceptable. There is nothing subtle about this fly fishing catalogue’s assault on a mining project. Opposition to mining in sulfide ore bodies appears to have become a focal point for the leadership of this company.
This is a free country and we all enjoy freedom of speech. The ultimate power, of course, is to take one’s business elsewhere, but I just found this to be a rather unique “in your face” form of environmental advocacy. If I want to receive environmental advocacy—from any quarter, I will ask for it. If I wish to purchase goods and get on a mailing list for that purpose, I expect to get future mailings about similar products. I do not expect—or authorize—use of my name and address to receive decidedly political advertising nor biased social commentary. I know how and where to get plenty of that in a setting where it is both thoughtful and analytical. Combining a commercial catalogue with a political advertisement, or rather turning a catalogue into a political advertisement, crosses the line. Perhaps it is a line that we as a society are willing to tolerate in this age of political intolerance. We will see.
Now, let the discussion begin.
Posted on July 16, 2013
Back in the 1950s and early 1960s, many feared that Canada geese were following – or perhaps waddling would be more apt - in the footsteps of the carrier pigeon. Until rediscovered in the wilds of Minnesota, the giant Canada goose, one of several subspecies, was thought to be extinct. Now the concern in much of the United States is the overabundance of resident Canada geese. These geese do not migrate to Canada and have flourished in both urban and suburban environs where there is abundant short grass to eat, plenty of water, and few predators. Averaging a pound of droppings per bird each day, increased numbers of such geese frequent our public parks and beaches, as well as golf courses, farm fields, and backyards, and are often viewed as a nuisance. Canada geese can also interfere with aircraft takeoffs and landings, as occurred in 2009 when US Airways flight 1549 was forced to land on the Hudson River in mid-town Manhattan.
While the solution to the overpopulation problem might seem obvious, it turns out that control of resident geese is subject to a number of regulatory requirements administered by the U.S. Fish and Wildlife Service, in addition to those imposed at the state and local level. Such federal authority is said to derive from the Migratory Bird Treaty Act , 16 U.S.C. §§ 703–712, adopted in 1918 to implement the provisions of a 1916 treaty with Great Britain signed on behalf of Canada (Convention Between United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702). That treaty protects three categories of “migratory birds”. One category, entitled “Migratory Game Birds”, encompasses a subcategory identified as “Anatidae or waterfowl, including brant, wild ducks, geese, and swans”. Under the Act, the hunting, taking, or killing of such migratory birds, as well as their nests and eggs, is only allowed under regulations issued by the Secretary of the Interior. While the treaty references geese that are migratory game birds, the U.S. Fish and Wildlife Service regulations identify protected birds by their species, thereby encompassing each and every Canada goose, regardless of whether that bird actually migrates.
In recent years, many nonlethal measures have been implemented to address unwanted numbers of resident Canada geese. These have included relocating such geese or chasing them away (such as with border collies and even hovering balloons with an evil eye depicted on them) and efforts to make an area less accessible or attractive (such as fencing and netting, as well as more “exotic” approaches like the application of grape flavored Kool Aid). However, as the population of resident Canada geese – and complaints about their presence - continued to grow, the U.S. Fish and Wildlife Service issued a final rule in 2006 to expand the methods for controlling their numbers.
Those new measures include categorical orders allowing airports and farms, as well as governmental authorities dealing with a public health threat, to implement various control actions without obtaining permits if specified procedures are followed, including the submittal of reports. Those actions encompass hunting, taking, and killing of resident Canada geese, as well as removing their nests and preventing their eggs from hatching (typically by coating them with corn oil), generally during the time period when their migrating cousins are “out of the country”. In addition and after filing a registration, landowners, municipalities, and other governmental authorities may remove Canada goose nests and oil their eggs from March through June in accordance with similar requirements. Expanded hunting opportunities and methods are also provided for, along with a state-regulated, “managed take” hunting program during August.
Although such measures were intended to reduce the overall population of resident Canada geese by about one third over a ten year time period, their success in many areas of the country – including in my neighborhood - is not readily apparent (e.g. I, II, III, IV). Moreover, they can require the commitment of significant management resources over the long term. As a result, there have been calls for less fragmented, regulation-focused measures. For example, New Zealand has removed Canada geese from its list of protected species and allows them to be hunted and killed at any time of year without a license by “humane means” (which at present would not include poison). While such an approach may not work in this country, particularly in urban and suburban areas where hunting is unlikely to address unwanted concentrations of the geese and vocal constituencies oppose any significant culling of the resident geese population, “something’s gotta give”.
Perhaps the place to start is to carefully consider whether resident Canada geese fall within the purview of a treaty and implementing statute that provide for protection of birds that migrate from one country to another, particularly where the stated premise for doing so is the concern that the migratory birds are subject to potential extinction due to lack of adequate protection. In that regard, the pertinent part of the 1916 treaty refers to migratory birds “of great value as a source of food . . . [that are] in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.” The Act in turn declares it unlawful, unless permitted by regulation, to hunt, take, or kill migratory birds or their nests or eggs covered by the treaty, with the Secretary of Interior authorized to allow such activities to the extent compatible with that treaty, giving “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds”.
By making such a distinction between resident and migrating Canada geese, it would then be possible to develop a scientifically based methodology for more effectively managing overpopulation of resident Canada geese, one that may not rely so heavily on the granting of hunting licenses or the removal of nests and egg oiling with all the bells and whistles now attached to such privileges. Moreover, distinctions could be made between control strategies utilized in urban and suburban areas and those best suited for use in rural or sparsely populated areas. And here’s hoping that this can be done expeditiously, before more of our public water supplies are threatened, and our parks and beaches are despoiled.
Posted on May 24, 2013
When an environmental lawyer is asked to draft or review a corporate environmental, health and safety program, the question arises as to what elements should be included. In the post-mortem evaluation of an accident, spill or some near-miss, it is often apparent that the corporate culture has played an important role, whether for good or for ill, in the employees’ implementation of the company’s program or in their immediate reactions to an unanticipated event. New guidance by the Bureau of Safety and Environmental Enforcement (BSSE) should help to shape a positive corporate culture toward compliance and environment protection. BSSE was created as part of the Department of Interior’s response to the Deep Horizon incident.
In a short notice issued in the May 10, 2013 Federal Register, the BSEE has issued its Final Safety Culture Policy Statement. This Statement briefly describes what BSEE regards as nine foundational characteristics of a positive safety culture -- one that embodies a commitment to conducting business in a safe and environmentally responsible way. These nine characteristics are: Leadership Commitment to Safety Values and Actions; Hazard Identification and Risk Management; Personal Accountability; Work Processes; Continuous Improvement; Environment for Raising Concerns; Effective Safety and Environmental Communication; Respectful Work Environment; and Inquiring Attitude. BSEE adds that additional traits can amplify or extend these basic characteristics.
Virtually all of these characteristics are familiar to an experienced environmental compliance counselor. Indeed, BSEE credits the Nuclear Regulatory Commission, the Federal Aviation Administration and other organizations for their input. Accordingly, the BSEE’s concise listing of these characteristics should be recognized for their application not only to BSEE’s focus on improving safety culture for Outer Continental Shelf activities, but also to environmental, health and safety programs in general. Hence, the BSEE Safety Culture Policy Statement is worth considering and perhaps citing when environmental lawyers are asked to develop or comment upon such corporate programs.
Posted on May 10, 2013
Proposals to export liquefied natural gas (“LNG”) produced in large part from shale gas recovered by hydraulic fracturing techniques or “fracing” continue the public debate about the desirability of exports of other energy resources. This political, regulatory, environmental and trade debate engages powerful politicians, lobbyists, environmental groups, trade associations, developers, producers, state regulatory authorities, consultants, academics, and landowners, and a broad spectrum of the press and public.
On its face, the notion of substantial exports of LNG to both countries with which the U.S. has free trade agreements (FTA) in place and those it does not, seems highly attractive. Such exports would improve the balance of trade deficits, create new jobs associated with the production; and produce tax revenue. And, from the broad environmental perspective, LNG exports would lower greenhouse gas emissions (GHG) in countries with heavy reliance now and in the future on coal or oil for electric generation, or in countries with need for replacement of nuclear facilities.
Query then, what are the factors that engender the impassioned debate on energy resource export policy? Key are: (1) fears of massive development of “frac” gas, freighted with concern over impacts on water, air, and use. Analogous to the Keystone XL battle, another concern is development of the unconventional gas for the benefit of foreign interests, particularly those without an FTA in place with the U.S. (export to those countries with FTA agreements with the U.S. is deemed by law to be in the public interest). (2) A second issue in contention on LNG is the impact on domestic energy prices if significant LNG exports limit availability of natural gas for domestic industrial and other uses. (This issue harkens back to the energy crises of the 1970s when natural gas availability was tight and energy prices sky high.)
So, although not explicitly an environmental-based objection, such opponents of LNG exports find friendly bedfellows with the environmental objectors and the commercial interests concerned about their ability to rely upon and benefit from increased gas supply. Industrial interests argue that stopping exports to non-FTA countries, particularly the insatiable Asian markets, will result in an industrial renaissance with jobs and development growing significantly. And, some opponents of LNG exports to non-FTA countries ironically, (to this blogger at least) express little regard for overall environmental benefit to potential importing countries and thus the globe. Rather, the impact on the United States from development of unconventionally sourced gas supply has been their focus point. Yet, LNG is only part of the energy export debate.
Further complicating this analysis is the parallel potential increase in the export of U.S. coal to energy hungry nations, particularly in Asia. As noted above, there is a broader questioning on the entire topic of U.S. energy resources exports: LNG, oil or refined products and coal. In addition to the Keystone XL pipeline standoff, many environmentally oriented players (e.g., the Sierra Club) and political leaders have expressed reservations about the export of U.S. coal for two primary reasons – the impact on the U.S. of new infrastructure for storage, transportation and increased mining activities, and the increase in GHG emissions worldwide as a result of heavier coal-fired electric generation. And in the past months, several proposed coal export projects have been scrapped. This energy export issue makes for a complicated stew of federal, local and regional politics. What makes the entire public war of words (and the behind the scenes maneuvering) so fascinating is the question of who or what decides where and with what restrictions U.S. energy resources are to be marketed to the world – the federal agencies, the state and local governmental entities, or the market? The next few months may provide guidance on LNG and perhaps the Keystone XL pipeline, however, the national and international implications of these decisions are so important that it is unlikely that peace will settle on these matters for decades.
Posted on December 6, 2012
There is a vital need for attorneys and other professionals to understand and discuss the past, current, and future role of our public lands system in the energy policy of the nation. In April of 2013, ABA SEER is hosting a symposium in partnership with The Public Land and Resources Law Review (PLRLR) at The University of Montana titled Balancing Act and Paradigm Shift: The Role of Public Lands in America’s Energy Future. The PRLR’s 35th Public Land Law Conference and ABA SEER’s 41st National Spring Conference on the Environment will combine to create an academic symposium to discuss the role of America’s three major sources of public lands and resources: river systems, terrestrial lands, and oceans.
If your work involves public lands, public resources or energy, this conference will be of interest to you. If you work with law students (in J.D. or LL.M. programs) with an interest in public lands and resources, I hope you will alert them to this opportunity and encourage them to submit an article. Entries should demonstrate original thought on a question of legal and/or policy significance relating to the symposium topic of the role of public lands and resources in America’s energy future. The topic is not confined to any particular type of public land or issue in energy or environmental law or policy. Any relevant article, case comment, note, or essay may be submitted, including writing submitted for academic credit. Jointly authored pieces are eligible only if all authors are students and consent to submit.
The winning submissions will receive a $1,000, $500, and $250 cash prize for 1st, 2nd, and 3rd place submissions, respectively. First and second place entries will be invited to attend the symposium on April 18, 2013 in Missoula, MT, with travel support from ABA-SEER. The first place entry will be published in the symposium edition of the Public Land & Resources Law Review in the summer of 2013.
The deadline for the student writing competition is January 14, 2013. For full details on entry requirements, click here.
Posted on August 17, 2012
In an effort to inject (no pun intended) regulatory certainty into the permitting of underground injection wells used in oil and gas hydraulic fracturing (HF) operations, on May 10, EPA issued draft guidance for HF operators utilizing diesel fuels in their injection process. EPA did not initially consider HF to be covered by its Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) program. EPA's view changed as the result of a number of court decisions which concluded that HF activities are subject to that program. In 2005, the Energy Policy Act revised the SDWA definition of underground injection was modified to exclude from UIC regulation the underground injection of fluids or propping agents other than diesel fluids used in HF operations related to oil, gas and geothermal production activities. This exclusion has, understandably, proven to be controversial, at least in part because there is no one definition of what constitutes "diesel fuel". The EPA draft guidance attempts to bring clarity to the definition of what constitutes a diesel fuel, by examining whether the injectate is included in one of six identified chemical abstracts and whether the fluid is commonly referred to as "diesel fuel". The draft guidance also touches upon other issues associated with HF operations including which activities are covered by the UIC program and the management of wells over their operational lifetime.
The comment period for the draft guidance closed on July 9, and the guidance, when finalized, will apply only to those jurisdictions in which the EPA directly implements the UIC program (fourteen states and territories and most tribal lands). The guidance, along with proposed requirements for HF on public lands published almost contemporaneously (77 Fed. Reg. 27691; May 11, 2012), signal an intention of the federal government to bring certainty to a very uncertain and controversial issue, and to impact a rapidly expanding industry which has previously been subject primarily to state and local regulation.
Posted on May 23, 2012
There has been a dramatic increase in shale gas and oil extraction over the past several years that is presenting an interesting mix of technical, legal, policy, and environmental issues. These appear to be playing out differently in each state, and with additional twists in Canada relative to the oil sands in Alberta and shale gas in Quebec. Although the flow of gas and oil has increased dramatically during this time, there appear to be continuing questions about the impacts on groundwater, the relationship to earthquakes, the nature of the chemicals used in the water injected, how the residual water should be treated, and many more. The matter of the Keystone pipeline has generated significant controversy between the United States and Canada, and the role of non-government organizations in this process has drawn the attention and concern of the Government of Canada. If this practice is not managed and regulated effectively, we are likely asking for serious environmental consequences like those we have experienced in the past when we have not thought through carefully what could happen as a result of our actions.
With the many issues to address, one in particular is the focus of this discussion, and that is the appropriate roles of federal, state, local, provincial, tribal, and first nation governments in the process of approving the siting, construction, and operation of the wells, in addition to the handling of the residues and the product. It appears a bulk of the responsibility is in the hands of state and provincial governments, but that may not be the best allocation of jurisdiction. Local governments have the primary responsibility of providing safe drinking water to their populations, and may be adversely affected by the fracking operations. Also, local wastewater management facilities are being looked to for treatment of the residual water from the process, which includes unknown chemicals and contaminants from the product. In some instances, local governments are being excluded from the approval process. It does not appear that tribal and first nation governments have been consulted to any great extent. On the federal level, U.S. EPA is not regulating the activity, although it is doing an extensive study of the potential impacts of fracking and related activities. Environment Canada has been engaged in the oil sands matter primarily through the evaluation of the environmental monitoring program undertaken by Alberta and the companies involved.
The very successful model used in the U.S. for air, water, toxics, and hazardous waste since 1970 that has a strong Federal presence that establishes a legal framework and minimum protective standards across the county, with the option for states to receive delegation and implement programs with more stringent requirements if they wish, should be used for shale gas and oil extraction. In addition, there need to be specific opportunities for local and tribal governments to participate in the process in a way that protects their interests. Also, there must be ample opportunity for public participation. This is the best way to reduce the likelihood of another very costly disaster down the road.
Resource extraction has always presented significant challenges to finding the right economic, social, and environmental balance in managing an activity for the broader good of the country. In the context of the continuing concern about serving the energy needs of the United States, Canada, and the rest of the world, the question is what makes sense and is good public policy? Perhaps we are still early enough in the history of this issue to make changes to help prevent serious and expensive problems in the future.
Posted on May 22, 2012
In the waning days of the Clinton administration, the U.S. Forest Service adopted a regulation to protect more than 50 million acres of national forest roadless lands, i.e., public lands still undeveloped and largely untouched. Called the Roadless Area Conservation Rule [36 C.F.R. § 294] or Roadless Rule (and sometimes called the RACR), it was soon off to the races with no fewer than nine lawsuits by development interests and western states seeking to invalidate it.
First, at the request of the State of Idaho and others, a district court in Idaho issued a preliminary injunction against the Roadless Rule – without opposition from the Forest Service, by then under different management. Conservation interests appealed and the Ninth Circuit reversed and vacated the injunction, allowing the Roadless Rule to take effect.
A district judge in Wyoming then invalidated the Roadless Rule and enjoined its implementation nationwide in a case filed by the State of Wyoming. An appeal by conservation interests to the Tenth Circuit, again with the Forest Service firmly on the sidelines, ensued. In 2005, before the appeal was resolved, the Forest Service itself repealed the Roadless Rule and replaced it with a state petition process, leading the Tenth Circuit to vacate the district court decision and dismiss the pending appeal as moot.
Conservation groups and the states of California, Oregon, Washington and New Mexico challenged the repeal. In 2006, a district court in California overturned the repeal and reinstated the Roadless Rule. The Ninth Circuit subsequently affirmed.
Back to Wyoming, where the State of Wyoming renewed its complaint and in 2008 the district court duly re-issued its earlier decision enjoining the Roadless Rule. Conservation groups again appealed to the Tenth Circuit, and in 2011 the Circuit reversed the district court’s decision and vacated the injunction. The RACR ruled again.
Last week, after the Tenth Circuit denied rehearing en banc, Wyoming petitioned the Supreme Court to review the Tenth Circuit’s decision. The decision is a unanimous, one hundred-plus page review of Wyoming’s claims under NEPA, the National Forest Management Act, and the Wilderness Act -- worth a read just as a primer on the current state of these laws. In the meantime, the Forest Service is now off the sideline and, along with conservation interests, expected to oppose Wyoming’s cert. petition. The Supreme Court should act on the petition by next Fall.
Unless you live in Hawaii, you’re probably no more than a few hours’ drive from the nearest national forest roadless area (yes, there are roadless areas in the White Mountains, Appalachians and Ozarks as well as the western states). Visit one and see what the controversy is all about. Or maybe you already know because you live in one of the hundreds of communities around the country that gets its drinking water from a nearby roadless area – so you enjoy these lands every time you turn on your tap. Any way you use and enjoy them, the more than 50 million acres of federal public land the Roadless Rule protects are still roadless after all these years.
(Full disclosure – Earthjustice represented the conservation interests in the cases discussed above.)
Posted on April 18, 2012
USEPA continues its program of death by a thousand cuts to the coal industry, but does the agency’s actions reflect a coherent national energy policy? On March 27, 2012 the EPA issued its new source performance standards for new power plants limiting CO2 emissions per megawatt-hour of produced electricity to a level about that of state-of-the-art, combined-cycle, gas-fired power plants. Importantly, industry observers claim that the level is far below what the best coal-fired power plants can achieve at least without commercially unavailable and quite expensive carbon capture technology. While certain exceptions within the rule preclude stating that EPA has banned the use of coal in new plants, it comes pretty close. That reminds me of an often repeated statement of an old client of mine back in the 1970’s whose recycled solvent fuel business and the EPA just didn’t get along that well—he would remark that “if coal were discovered today, EPA would never allow it to be burned.” He appears to have been ahead of his time.
Of course one winner in this is natural gas. With new sources of natural gas from shale and fracking having driven natural gas prices downward relative to coal and oil, old King Coal has been facing a distinct price disadvantage for years. EPA had further disadvantaged coal and oil as a result of last year’s cross-state air pollution rule. Last December, EPA’s MATS rule (mercury and air toxics standards) for power plants further adversely affected coal. Is EPA’s latest effort merely the coup de grace?
Don’t get me wrong. I’m not a coal apologist. One need not be a fan or sworn enemy of either natural gas or coal, of free markets or environmental regulation, to realize that something is going on that is important to our national energy situation with no one particularly in charge. After all, coal mining, transportation and existing uses drive tens of thousands of jobs and the economy of such disadvantaged states as West Virginia. Presidents and presidential candidates have decried our lack of a national energy policy for 30 years with meager results.
My point is otherwise: What does the overall national interest—economic, energy and environment—have to say about the relative use of coal vs. natural gas vs. petroleum vs. nuclear power? Should EPA’s rule, based on concerns for global warming and not immediate health and safety, trump everything else? Should we increase our reliance on natural gas at the expense of coal? Should we be at the mercy of market forces without regard to our long term, sustainable future? Should we simply use a bumper sticker (“Drill, baby, drill”) instead of reasoned policy?
What passes as policy is a series of regulatory silos each with its own raison d’etre—FERC, NRC, EPA, DOE. And, of course, Congress, some of whose members can’t wait to kill alternative energy policies (solar), decry subsidization for renewables while rejecting as nearly immoral attempts to eliminate out of date tax subsidies for oil and gas (Subsidies at today’s prices? Give me a break!). EPA’s new rule, in isolation from everything else, is merely another example of our lack of a coherent national policy on energy. It may be a good environmental rule, but is it good for the country?
Posted on March 9, 2012
Even as a latent issue, subsidies to the oil and gas industry have the potential to be a political hot potato. But with President Obama putting them front and center in his recent speech at New Hampshire’s Nashua Community College, the issue joins the already crowded landscape of political fodder heading into the fall elections. President Obama’s “all of the above” energy program covers a variety of activities, including production of oil and gas, funding renewable energy sources, and encouraging innovation of new technologies. In the end, fossil fuels are an exhaustible source of energy that cannot be the total answer to our energy needs, as even oil and gas companies recognize. And they come with a real set of hazards, as the recent Deepwater Horizon settlement reminds us.
Although not directly part of his “all of the above” energy program, President Obama is rightfully addressing government subsidies for oil and gas that could be migrating towards increasing subsidies for solar farms and wind turbines. While fossil fuels will eventually run out, wind, solar, and biomass will not, but have yet to enjoy the level of support afforded to the oil and gas industry. According to a recent analysis of the economics of energy by experts at the Imperial College London and the UK Energy Research Center electricity from wind power may, in five years, be less expensive than electricity from natural gas in the U.K. if current levels of government subsidies were transferred to renewable energy sources.
While the study is specific to the United Kingdom, there are takeaways applicable in the U.S. First the analysis recognizes the important support that subsidies provided to oil, gas, and nuclear energy development when each were in infancy. Through those subsidies, energy companies were encouraged to develop technologies, survey areas that were geologically ripe for oil and gas exploration, and hire workers to help build up the industry. Second, now that oil, gas and, to a lesser extent, nuclear energy sources are more completely developed, those subsidies should be transferred to the development of renewable energy. In addition, the gains made by the wind and solar industry should not be set aside in search of the elusive promise of cheaper oil through more drilling. Fossil fuels will run out. If “all of the above” is to be a real strategy, then it must provide more of an equal opportunity for all sources of energy.
The Department of Energy recently announced $150 million in grants under its ARPA-E program. This money is intended for development of cutting-edge energy technologies so that they can gain the necessary traction to be self-sufficient. The announcement follows on the heels of an additional $30 million offered under the ARPA-E program toward development of natural gas-based vehicles. Both these numbers pale in comparison to the $4 billion in yearly subsidies for oil and gas developers. Even shifting half of the oil and gas subsidies into renewable and developing technologies could well make a dramatic difference in our overall energy future by encouraging the build-out of wind, solar, and biomass businesses into viable and self-sufficient industries. There will come a time for a full discussion of the value of energy subsidies as a whole, but this would provide a fair start toward creating parity with fossil fuels.
The Deepwater Horizon disaster is a reminder of the cost associated with use of fossil fuels. Significant government subsidies provided to the oil and gas industry played an important part in encouraging their initial and ongoing development. Programs such as ARPA-E can provide a jump-start for emerging energy technologies, and shifting subsidies can offer a chance for “all of the above” to be a real solution.
Posted on February 15, 2012
Recent actions taken by the Bureau of Land Management (BLM) to protect species on BLM-managed lands, before those species have been listed under the Endangered Species Act (ESA), raise questions about the evolution of BLM’s role in species protection and the impact this evolved role may have on minerals leasing and development on BLM-managed lands.
BLM is charged, under the Federal Land Policy and Management Act of 1976, with developing Land Use Plans that make its public land and resources available under the principle of multiple-use, but at the same time, conserving special status species and their habitats. The agency’s actions with respect to two species, the Greater Sage-Grouse and the Dunes Sagebrush Lizard, are indicative of BLM’s trajectory in how it intends to balance its roles as species-protector and minerals-manager on public lands.
A December 27, BLM-issued internal Instruction Memorandum (IM) provides interim management policies and procedures to protect the Greater Sage-Grouse on BLM-managed lands in the Western United States with the expressed goal of potentially avoiding an ESA listing. The Greater-Sage Grouse is currently not protected under the ESA, its listing having been designated as “warranted but precluded” by the U.S. Fish and Wildlife Service (FWS) in March 2010. The “warranted but precluded” listing decision concluded that existing regulatory mechanisms in the BLM’s Land Use Plans were inadequate to protect the species, which is found in up to 47 million acres of BLM-managed land.
The December IM makes it clear the new guidelines apply to both proposed and existing leases. The IM does recognize holders of existing mineral leases do have valid rights entitling them to certain development activities, but the guidance also indicates BLM will attempt to provide maximum protection to the Sage-Grouse within the bounds of those leases. For example, for fluid mineral leases, the IM states BLM may issue written orders requiring “reasonably protective measures consistent with the lease terms.” Further, when an existing leaseholder requires a new permit for minerals development, BLM plans to impose “reasonable” conditions in the permits that are likely to be more protective than the stipulations and restrictions currently identified in approved Land Use Plans.
BLM expressed a similar stance in the development of resource management plans in New Mexico to address the Dunes Sagebrush Lizard. In that instance, BLM noted "holders of existing oil and gas leases have valid rights for development of their leases" but asserted in responses to public comment that BLM "can withhold approval of prospective well locations on existing leases" or address candidate species through existing lease stipulations.
With FWS experiencing increasing backlogs in addressing ESA listing petitions, it seems likely there will be many more species that, like the Greater Sage-Grouse and the Dunes Sagebrush Lizard, are found to need habitat protection but cannot be allotted resources by FWS to do so. If BLM continues to step in and afford protections on the level it has in the case of these two species, effects on minerals leasing in BLM-managed lands could be far reaching. Minerals leaseholders on BLM lands should keep an eye on how far BLM ultimately stretches the bounds of existing mineral leases to protect the Greater Sage Grouse and Dunes Sagebrush Lizard, because BLM’s approach to these species may be indicative of a trend that will apply to many more species in the future.