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Neal Rasmussen, MJLST Staff Member
In "Notes from Underground: Hydraulic Fracturing in the Marcellus Shale" from Volume 12, Issue 2 of the Minnesota Journal of Law, Science & Technology, Joseph Dammel discussed the then current state of hydraulic fracturing ("fracking") and offered various "proposals that protect public concerns and bolster private interests." Since publication of this Note in 2011, there have been major changes in the hydraulic fracturing industry as more states and cities begin to question if the reward is worth the risk.
Since 2011, required disclosures of the fluids used in fracking have become effective in fourteen additional states, increasing the overall number of states that require disclosures to twenty. While required disclosures have alleviated some concerns, many believe this is not enough and have pushed to ban fracking outright. Vermont was the first state to do so in 2012. Although progressive, the ban was more symbolic as Vermont contains no major natural gas deposits. However, in late 2014 New York governor Andrew Cuomo made a landmark decision by announcing that fracking would be banned within New York State. Many cities have begun to pass bans as well, including Denton Texas, right in the heart of oil and natural gas country. Citing concerns about the potential health risks associated with the activity, Florida could be the next state to join the anti-fracking movement. In late 2014, two Florida senators introduced a bill that sought to ban all fracking activities and a state representative introduced a similar bill in the beginning of 2015.
The bans have not been without controversy. The fracking industry has challenged many of the local bans arguing the bans are pre-empted by state laws and exceed the cities authority. After Denton passed its local ban, the Texas Oil & Gas Association filed an injunction arguing the city did not have authority to implement such a ban. It yet to be seen if the injunction will be successful but if the results in Colorado are any indication, where local fracking bans have been overturned due to state preemption, the fracking industry should be confident. Until or unless there is a major federal decision on fracking regulations, the fracking industry will be required to juggle the various state and local regulations, which are becoming less friendly as fracking becomes more controversial nationwide.
Allison Kvien, MJLST Staff Member
The Court has never reversed a lower court ruling on the ground that the lower court failed to apply NEPA with sufficient rigor. Indeed, as described at the outset, the Court has not even once granted review to consider the possibility that a lower court erred in that direction and then heard the case on the merits. The Court has instead reviewed cases only when NEPA plaintiffs won below, and then the Court has reversed, typically unanimously.Because environmental plaintiffs have never won before the Supreme Court on a NEPA issue, many view the statute as a weak tool and have wanted to strengthen or overhaul NEPA.
The president's initiative has identified a number of permitting improvements, but it does not include a serious effort to force multiple agencies to align their permitting processes. A key to forcing multiple agencies to work together on project reviews and approvals is found in an unlikely place: NEPA. The statute is overdue for a makeover that will strengthen how it identifies and analyzes environmental impacts for federal decisionmakers. In doing so, it can provide the framework that will require multiple agencies to act as one when reviewing large projects.Though Obama's proposal may not address improvements for NEPA itself, could it help those who have long wished to give NEPA an overhaul? This is not the first time in the last couple years that the President has talked about using NEPA. In March 2013, Bloomberg released news that Obama was, "preparing to tell all federal agencies for the first time that they should consider the impact on global warming before approving major projects, from pipelines to highways." With NEPA being key to some of President Obama's initiatives, could there be more political capital to address some changes for NEPA that have been long-wanted? There might be some hope for NEPA just yet.
Ke M. Huang, MJLST Lead Articles Editor
As a second-year law student, I met an energy law attorney who told me that sometimes his job felt like mediating between two parents. Two parents butting heads.
The more recent legal developments in the cellulosic ethanol industry since the publication of my student note in the Volume 15, Issue 2 of the Minnesota Journal of Law, Science & Technology echo the words of the attorney I met. In the note--published in Spring 2014 and entitled A Spoonful of Sugarcane Ethanol--I argue that the U.S. should enact tax benefits to spur cellulosic ethanol based on existing Brazilian tax benefits for sugarcane ethanol. Ethanol, or ethyl alcohol, is a fuel fermented from renewable resources. In the case of cellulosic ethanol, the resource is vegetative and yard waste; in the case of sugarcane ethanol, the resource is sugarcane juice.
Unlike the note, which focuses on tax benefits, the recent developments in the cellulosic ethanol industry center on blending mandates, both in the U.S. and Brazil. Under these mandates, motor fuel--which contains mostly gasoline--must be blended with a certain amount of ethanol. The U.S. motor fuel mandate is the Renewable Fuel Standard (RFS). RFS, which generally requires the petroleum industry to blend in motor fuel specific amounts for cellulosic ethanol, was already subject to litigation in American Petroleum Institute v. EPA, 706 F.3d 474 (D.C. Cir. 2013). However, the concerned industries of that case, primarily the petroleum industry and the cellulosic ethanol industry, continue to disagree. Broadly speaking, as further elaborated in this Bloomberg BNA blog entry, the petroleum industry takes the position that the RFS is unworkable. To much the vexation of the cellulosic ethanol industry. What makes the recent development more interesting is that, since early 2014, the cellulosic ethanol production seemed to have increased. Extending the metaphor of fighting parents, it is as if the ethanol parent continues to grasp the motor fuel teen, a teen that has grown bulkier in size, when the petroleum parent is ready to send the teen off to college.
In Brazil, a similar "family tale" ensues. In late 2014, Brazilian President Dilma Rousseff signed the legislation to increase Brazil's blending percentage of ethanol from 25% to 27.5%. Still, the semi-public petroleum producer Petrobras expressed concern that, before the change in the mandate can be put in effect, more study is needed. These articles further explain these events (1)(2). As such, in this "family," the parents are at a deadlock.
On a more serious tone, as I reread my student note, I would like to make two corrections. I apologize for the misspelling of Ms. Ruilin Li's name on page 1117, and for the missing infra notations on page 11141 (notes 218 to 221).
Matt Mason, MJLST Staff
Historically, the climate change mitigation arena has centered almost exclusively on traditional national and supra-national actors. However, persistent failures in seeking widespread agreement among many nations with diverging interests have recently given rise to experiments in climate change mitigation by nontraditional actors at the sub-national and sub-state level.
Myanna Dellinger recently wrote an excellent and informative article advocating for the need to implement local climate change initiatives. Dellinger examined a number of recently adopted local climate change initiatives, arguing that bottom-up methods can indeed be an effective alternative to the more traditional top-down approaches. With nontraditional local government and non-government actors becoming more involved in climate change mitigation due to lack of effective action of the traditional climate change actors, Dellinger concluded that "local initiatives currently present the most promising course of action for effective climate change solutions." Effective local climate change solutions should focus on a number of factors, according to Dellinger, including carbon reduction, public participation, improved energy infrastructure, and the mobilization of private entities. Additionally, Dellinger found that city programs with some degree of enforcement, such as exclusion for non-compliance and public disclosure of progress, tend to be more effective.
The City of Minneapolis has a history of implementing climate change initiatives at the local level, starting with the Minneapolis - St. Paul CO2 Reduction Projection in 1993. In 2004, then Mayor R.T. Rybak signed the U.S. Conference of Mayors Climate Protection Agreement pledging to take action to reduce greenhouse gas emissions. Most recently, the City of Minneapolis adopted the Minneapolis Climate Action Plan this past June.
The overall goals of the Climate Action Plan are to reduce emissions by 15% in 2015, and 30% by 2025. The Plan seeks to achieve collaboration between local government, businesses, civic organizations, and residents alike to not only reduce emissions, but also improve public health, shift to a more energy efficient economy, generate more electricity from local and renewable sources, and to promote cleaner fuel use throughout the public transit system. To achieve these goals, the Plan itself focuses on three key sectors: buildings and energy (with commercial and residential buildings being the largest source of emissions in 2010 totaling 65% of all emissions), transportation and land use (with transportation representing the second largest emitter at 29% of total emissions in 2010), and waste and recycling (including the goal of increasing the recycling rate to 50% by 2025).
While we often do not think about the impacts of climate change at the local level, the Climate Action Plan highlights a number of localized effects of recent climate change. For example, since 1970 the average annual precipitation in the Minneapolis area has increased by 20%. Additionally, average air temperatures are increasing, with the greatest warming trend at night and in the winter months, which is consistent with higher concentrations of greenhouse gasses in the atmosphere. If the current climate trends continue, the Plan projects difficult summers ahead with increasingly common heat waves and "extreme heat events." Not to mention to projected increase in days with low air quality and a general increase in the level of ozone pollution.
While it remains to be seen just how effective the Minneapolis Climate Action Plan will be, it appears to be relatively in line with the localized climate change policies advocated for by Dellinger. The Plan requires progress to be reported annually, and provides that climate reduction goals and strategies must be revisited at a minimum of every three years. In addition, the Plan seeks to improve the energy infrastructure by making environmental and infrastructural benefits more equitable between low-income communities and elsewhere in Minneapolis. Furthermore, the Plan seeks the involvement of private entities and the public at-large. On a broad policy level, the Plan prioritizes "high impact, short timeframe," and cost effective strategies, while attempting to implement strategies with multiple benefits to the climate change problem. Time will tell whether Minneapolis's own localized climate action plan will see effective results such as those analyzed by Dellinger, but hey, you have to start somewhere.
Joe McCartin, MJLST Staff
In recent years, high crop and farmland prices, in combination with technological advances in agriculture, have pushed crop producers to convert virgin prairie at an alarming rate. Minnesota, for example, was once covered in prairie. Yet, today only 1% remains of the 18 million acres that once covered the state, and that too has come under threat. Exacerbating the problem is the fact that federal subsidies and crop insurance treated crops equally even if they were being grown in an ecologically destructive manner. A crop producer received taxpayer support even for corn and soybeans grown on virgin prairie that had just been plowed-under. These were often areas once considered marginal for crop production, but they held enormously high value for wildlife and helped protect water quality from other agricultural erosion and pesticide and fertilizer pollution.
The recently passed Farm Bill, the Federal Agricultural Reform and Risk Management Act of 2014, included a new program, Sodsaver, proposed by Ducks Unlimited and advanced by a diverse array of organizations, from the Theodore Roosevelt Conservation Partnership and Trout Unlimited to the Union of Concerned Scientists and the World Wildlife Fund. The program aims to shift the incentives that make the plowing of virgin prairie so appealing. It works by preventing farmers from enrolling virgin prairie, land that has not been planted with crops previously, in the federal crop insurance program. Since subsidies will slowly be phased-out for most crops, preventing access to crop insurance will prevent taxpayers from footing the bill for the ecologically damaging process of planting on virgin prairie. By forcing farmers to rely entirely on free-market forces for crops grown on this land, Sodsaver hopes to make the often lucrative decision to plow the prairie riskier for crop producers. Unfortunately, the program was only implemented in a limited number of states that make up the Prairie Pothole Region - Minnesota, Montana, the Dakotas, Iowa, and Nebraska.
Because the program does not mandate that crop producers preserve their native, virgin prairie, but merely withholds taxpayer support if the decision is made, it is forecast to save taxpayers nearly $120 million over 10 years. These savings could grow substantially if the program had not been limited to a handful of states. However, the important question remains unanswered, will this change the behavior of crop producers. While removing crop insurance coverage seems to be a logical first step in stemming the tide of prairie loss, it is only a first step. Whether it will be enough will depend heavily on crop prices and actions by grassland states to protect and restore these priceless ecological resources. A diverse array of migratory waterfowl and songbirds very survival depends on the success of Sodsaver in these trial states, and the program's expansion into all grassland states.
The author served on the Policy Council of the Theodore Roosevelt Conservation Partnership, one of the supporters of the Sodsaver program.
Daniel Schueppert, MJLST Staff
With the recent celebration of Mardi Gras not long past, Louisiana and other southern coastal states are once again making national news. Meanwhile, in the background of these festivities, lawyers and the courts are toiling away at ongoing litigation arising from the Deep Water Horizon oil spill: a spill that began almost four years ago, lasted at least eighty-seven days, and caused the deaths of eleven people.
In 2012 Daniel Farber published an article titled The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast in vol. 13 of the Minnesota Journal of Law, Science & Technology. In his article, Professor Farber analyzed the pre-spill, post-spill, and anticipated condition of the oil-affected coastal states. Many of the issues identified in his paper continue to be troubling in light of the disruption caused by the oil spill. In addition to the environmental and regulatory issues that face these states, the Eastern District of Louisiana is embroiled in a prolonged legal battle related to destruction of digital evidence that might have made a difference before or during the well blowout.
Kurt Mix was a drilling engineer for BP assigned to the Deep Water Horizon at the time of the blowout off the coast of Louisiana in April, 2010. In the course of his work, Mix had access to, and a degree of control over the production of, internal BP data about the rate and amount of oil flowing out of the damaged Macondo Prospect well upon which the Deep Water Horizon was sited. BP publicly issued statements that the well had a flow rate at the time of about 5,000 barrels daily, but during the same period, BP and Mix's team allegedly knew that the rate was closer to 64,000 to 146,000 barrels per day, according the government's related complaint against BP directly.
In May, 2012 "Mix was charged by the United States in a two count indictment with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). . . . based on his allegedly deleting certain iPhone texts to BP's then-Drilling Engineering Manager . . . ." for the region and a third party contractor who was assisting with the spill and blowout response. U.S. v. Mix, 12-171, 2012 WL 2420016 (E.D. La. 2012). Mix was found guilty on this obstruction charge despite having previously released that information to U.S. government representatives, and according to a Forbes article, Mix's disclosures were a primary source comprising the basis of the government's claims against BP. He is the only natural person to have had claims related to the oil spill stick. The content of the texts themselves have so far not been recovered despite his conviction, which raises questions about the procedural management and prosecutorial discretion used in this collection of cases related to the Deep Water Horizon blowout. Following Mix's conviction, there has been a procedural dance of more than twenty actions between the United States and Mix, touching on issues of attorney privilege, judicial conflicts of interest, criminal and civil procedure, and proportional liability for allegations based on extinct digital evidence.
by Myanna Dellinger, JD, MA - Associate Professor at Western State College of Law and Director of the Institute for Global Law and Policy
Extremely cold weather conditions still haunt the American North and Northeast. Meanwhile, California is suffering through July temperatures in January and the worst drought since 1895. No doubt about it, we are witnessing ever more frequent extreme weather events. Since nations still can't agree on what to do about this urgent problem, it may be up to local actors such as cities, states, companies, and NGOs to take the required action now.
Nations have agreed to "try" to limit global warming to 2° C and to agree on a new climate treaty by 2015 to take effect by 2020, but in reality, we are headed towards a 5.3° C increase. Even if the 2° degree target were to be met, vast ecological and economic damage would still occur in the form of, for instance, severe economic disruptions to our food and water supply.
Disregarding climate change is technologically risky too: to meet the target of keeping concentrations of CO2 below the most recently agreed-upon threshold of 500 ppm, future generations would have to literally pull CO2 out of the air with either machinery that does not yet exist and may never become technically or economically feasible, or with bioenergy crops that absorb CO2, which would compete with food production.
My article "Localizing Climate Change" argues that effective and urgent action is likely to come from the local and not the national or international levels.
by Brandon Palmen, UMN Law Student, MJLST Executive Editor
Climate change is the ultimate global governance challenge, right? It's an intractable problem, demanding a masterfully coordinated international response and a delicate political solution, balancing entrenched economic interests against deeply-discounted, diffuse future harms that are still highly uncertain. But what if that approach to the problem were turned on its head? We often hear that the earth will likely warm 3-5 degrees centigrade (+/- 2 degrees), on average, over the next hundred years, and we may wonder whether that's as painful as higher utility bills and the fear of losing business and jobs to free-riding overseas competitors. What if, instead, Americans asking "what's in it for me?" could just go online and look up their home towns, the lakes where they vacation, the mountains where they ski, and fields where their crops are grown, and obtain predictions of how climate change is likely to impact the places they actually live and work?
A new climate change viewing tool from the U.S. Geological Survey is a first step toward changing that paradigm. The tool consolidates and averages temperature change predictions based on numerous climate change models and displays them on a map. The result is beautiful in its simplicity; like a weather map, it allows everyday information consumers to begin to understand how climate change will affect their lives on a daily basis, making what had been an abstract concept of "harm" more tangible and actionable. So far, the tool appears to use pre-calculated, regional values and static images (to support high-volume delivery over the internet, no doubt), and switching between models reveals fascinatingly wide predictive discrepancies. But it effectively communicates the central trend of climate change research, and suggests the possibility of developing a similar tool that could provide more granular data, either by incorporating the models and crunching numbers in real time, or by extrapolating missing values from neighboring data points. Google Earth also allows users to view climate change predictions geographically, but the accessibility of the USGS tool may give it greater impact with the general public.
There are still challenging bridges to be crossed — translation of what "N-degree" temperature changes will likely have on particular species, and "tagging," "fencing," or "painting" of specific tracts of land with those species — but it is plausible that within a few years, we will be able to obtain tailored predictions of climate change's impact on the environments that actually matter to us — the ones in which we live. Of course those predictions will be imprecise or even wholly incorrect, but if they're based on the best-available climate models, coupled with discoverable information about local geographic features, they'll be no worse than many other prognostications that grip everyday experience, like stock market analysis and diet/nutrition advice. Maybe the problem with public climate change debate is that it's too scientific, in the sense that scientists know the limitations of their knowledge and models, and are wary of "defrauding" the public by drawing inductive conclusions that aren't directly confirmed by evidence. Or maybe there's just no good way to integrate the best climate models with local environmental and economic knowledge ... yet.
Well, so what? Isn't tackling climate change still an intractable global political problem? Maybe not. The more that people understand about the impacts climate change will have on them personally, the more likely they are to personally take action to ameliorate climate change, even absent meaningful top-down climate change policy. And while global governance may be beyond the reach of most individuals, local and state programs are not so far removed from private participation. In her recent article, Localizing Climate Change Action, Myanna Dellinger examines several such "home-grown" programs, and concludes that they may be an important component of climate change mitigation. Minnesotans are probably most worried about climate change's impact on snow storms, lake health, and crop yields, while Arizonans might worry more about drought and fragile desert ecosystems, and Floridians might worry about hurricanes and beach tourism. If all of these local groups are motivated by the same fundamental problem, their actions may be self-coordinating in effect, even if they are not coordinated by design.
by David Tibbals, UMN Law Student, MJLST Staff
When does "mobile" mean "stationary"?
Noah Webster's response should be obvious. But it appears the U.S. Supreme Court is preparing to weigh in on that very question.
Just last week, the Court granted certiorari in the case of Utility Air Regulatory Group v. Environmental Protection Agency, an amalgam of six separate lawsuits questioning the authority of the EPA to broaden its regulation of greenhouse gases. At issue is the EPA's decision to begin enforcing regulatory and permitting programs against stationary producers of greenhouse gases, such as coal-fired power plants.
The case can be viewed as a direct descendant of 2007's Massachusetts v. EPA, in which the Court held that the EPA can regulate greenhouse gases, despite the fact that they weren't actually recognized as "air pollutants" covered under the Clean Air Act. The Court's ruling, however, was limited to greenhouse gases emitted by mobile sources, namely new automobiles.
Although the Court's grant doesn't challenge the general characterization of greenhouse gases as "air pollutants," it poses a single question, the answer to which could effect a dramatic change in agency rulemaking. Is the EPA allowed to "trigger" permitting requirements for stationary sources based solely on its past regulation of mobile sources?
In essence, does "mobile" mean "stationary"?
The only prudent answer to that question is an emphatic "no." Allowing the EPA--or any agency, for that matter--to premise broadened jurisdiction in such a manner vests an inordinate amount of power in a body well-nigh immune from the political process. Although it's heretical to mention in a post-Chevron world, Locke and Montesquieu urged the incompatibility of such extra-legislative lawmaking power with democratic principles.
But a more eye-opening reason for answering in the negative is the adverse economic blow such expanded regulation will strike. Expanding regulation to "stationary" sources--an incredibly equivocal characterization--will inevitably result in increased compliance costs. This increase is already being realized by producers and consumers alike; a power company in Mississippi has raised electricity rates by 15% this year to fund a new, fully-compliant plant.
By the way, that new plant has already run $1.4 billion over budget.
The Court is expected to announce its judgment next summer. If it is interested in relying on democratic principles and catalyzing a languid economy, it will overrule expanded regulation and prevent the EPA from further soiling the Clean Air Act.
by Chris Evans, UMN Law Student, MJLST Executive Editor
Less than 200 miles from the site of 2010's Horizon Deepwater blowout, another environmental disaster threatens a community in the Gulf Coast region. In early August, 2012, a massive sinkhole opened up beneath the Bayou Corne near a small residential community in Assumption Parish, Louisiana. Filled with brine, oil, and natural gas, the sinkhole has since grown to 8 acres, forcing the evacuation of 300 residents, and officials apparently don't know when (or if) the area will again be habitable.
Below the Bayou Corne, the country's largest independent brine (used in a variety of industrial processes) producer, Texas Brine, had been removing brine from an underground salt cavern for over twenty-five years up until June 2011, when it plugged the cavern. Texas Brine also, with the permission of Louisiana Department of Natural Resources, deposited naturally-occurring radioactive material in the cavern. The USGS has determined the collapse of the cavern caused the sinkhole. Although Texas Brine has been working with authorities to monitor and remedy the disaster, the company sought an injunction against an order to drill new wells to install additional monitoring equipment. Texas Brine dropped that lawsuit when Louisiana agreed to instead require the company to perform 3D seismic imaging to evaluate the cavern.