More on Daubert: The 11th Circuit Allows EPA’s Experts to Testify on NSR Violations

Posted on September 27, 2013 by Seth Jaffe

Last spring, my colleague Robby Sanoff complained on our firm’s blog about the problem resulting from appellate courts’ refusal to give appropriate discretion to district judges in performing their gatekeeping function under Daubert.  As Robby put it:

"The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder."

Robby will not be pleased by last’s week’s decision by the 11th Circuit Court of Appeals in United States v. Alabama Power, reversing a district court order excluding EPA’s expert testimony in support of its NSR enforcement action against Alabama Power.  The Court majority performed an extensive review of the testimony provided in the Daubert hearing below, and concluded that the district court’s decision was clearly erroneous.  (For those of you concerned with the merits of these cases, the question was whether EPA’s model, which clearly applied to determinations of emissions increases for baseload plants, could be applied as well to cycling plants generally and the plants at issue in the case in particular.)

The case is particularly interesting because Judge Hodges, taking Robby’s view, dissented.  As Judge Hodges noted, prior to the Supreme Court decision in General Electric v. Joiner, appellate courts did not grant significant discretion to district courts in exclusion rulings.  However, Joiner made clear that the abuse of discretion standard applies even in outcome-determinative exclusion rulings.

Next, Judge Hodges noted that, in Daubert rulings, there should be a “heavy thumb – really a thumb and a finger or two – that is put on the district court’s side of the scale.”  He then rehearsed the actual statistics on Daubert reversals in the 11th Circuit:  3 reversals out of 54 cases.

Finally, Judge Hodges conducted a brief review of evidence tending to support the district court’s conclusion and determined that its decision was not “a clear error in judgment.”  Concluding that a different result might be appropriate if review were de novo, Judge Hodges quoted Daubert itself:

"We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."

Decisions such as this have to be discouraging to district court judges, as Robby noted.  It’s worth pointing at that Judge Hodges is actually a district court judge, sitting on the court of appeals by designation.  It seems fitting that the district judge on the panel would be the judge vainly trying to protect the discretion of district judges in Daubert matters.

Shoot First -- Ask Questions Later

Posted on September 26, 2013 by Mark Walker

“Shoot first, ask questions later” is how Congressman Chris Stewart described EPA’s efforts to link groundwater contamination to hydraulic fracturing.  Stewart is the Chair of the Environmental Subcommittee of the House Committee on Science, Space and Technology, chairing the July 24 hearing on “Lessons Learned:  EPA’s Investigations of Hydraulic Fracturing.”  Specifically at issue was the EPA’s investigation in Pavillion, Wyoming.

In December, 2011, the EPA issued a “draft” report which concluded that hydraulic fracturing in the Pavillion, Wyoming gas field had caused pollution of the deep drinking water aquifer.  The draft report was based upon sample results from two EPA monitor wells and was issued without peer review or stakeholder input.

There were serious flaws with EPA’s work.  For starters, EPA failed to complete the monitor wells according to its own guidelines.  Annular sealants were not properly installed, allowing cement to impact the water quality.  A landowner’s complaint that EPA had an anti-freeze leak during drilling operations was not disclosed in the draft report.  EPA exposed the wellbores to painted low-carbon steel casing and welding materials, which are known to contain various organic and metal compounds, yet the report inaccurately stated that stainless steel casing had been used.  Moreover, several of the constituents which the EPA attributed to hydraulic fracturing fluids (e.g. glycols, 2-butoxyethanol and phenols) are known to be associated with the high pH cement that the EPA used to complete the wells.  The bottom line is that the EPA’s own operations introduced the contaminants that it blamed on hydraulic fracturing fluids.

Subsequent testing by the USGS was unable to verify the EPA’s results.  The USGS was unable to find some of the compounds that EPA claimed were present, and other constituents were found at significantly lower levels.  The USGS was unable to sample one of the two wells due to improper well construction.

The EPA has now walked away from its flawed study, turning the entire investigation over to the State of Wyoming.  The EPA has stated that the draft report will not be peer reviewed or finalized, and that the results will not be used in its national hydraulic fracturing study.  Nevertheless, the EPA’s handling of Pavillion has cast doubt over the EPA’s national investigation of hydraulic fracturing intended to develop regulatory policy for unconventional reserves, causing Chairman Stewart to conclude, “given EPA’s rush to judgment in Wyoming…we should question whether the Agency’s ongoing study is a genuine, fact-finding, scientific exercise, or a witch-hunt to find a pretext to regulate.”

Court Upholds Multi-State Chesapeake TMDL

Posted on September 25, 2013 by Ridgway Hall

On September 13, in a 99 page decision, the U.S. District Court for the Middle District of Pennsylvania upheld EPA’s multi-state Clean Water Act Total Maximum Daily Load (“TMDL”) for the Chesapeake Bay and its tributaries against a broad range of challenges brought by the American Farm Bureau Federation and six other farm industry trade associations. Six environmental organizations led by the Chesapeake Bay Foundation, plus four municipal water associations led by the National Association of Clean Water Agencies, intervened in support of EPA.

The Chesapeake Bay TMDL is not the first to cover multiple states, but it is by far the largest, covering 64,000 square miles in Maryland, Virginia, Delaware, Pennsylvania, West Virginia, New York and the District of Columbia.  It requires substantial reductions of nitrogen (25%), phosphorus (24%) and sediment (20%) by 2025 to  meet water quality standards.  Because of the interstate nature of the long-standing pollution problems, after more than two decades of collaborative but unsuccessful efforts, the states agreed in 2007 that EPA should develop the TMDL. It was issued in 2010 and included allocations for each of 92 tidal segments which, after consultation with the states, were further allocated among states, watersheds and sectors (such as agriculture, wastewater, stormwater, etc). During the process, each state developed its own Watershed Implementation Plan (“WIP”), specifying  wasteload allocations (“WLA’s”) for point sources, load allocations (“LAs”) for nonpoint sources, and identifying the regulations, programs and resources that would be used to achieve the required reductions. For more on this TMDL see "EPA Issues Biggest TMDL Ever for Chesapeake Bay Watershed" and ELI Environmental ForumThe Chesapeake Bay TMDL” (May/June 2011). 

The plaintiffs alleged that (1) the TMDL was an unauthorized “implementation” of  allocations by EPA, (2) requiring WIPs exceeded EPA’s authority, (3) EPA’s use of watershed and related models in setting the allocations was an abuse of discretion, and (4) there was insufficient public notice.  In addressing these challenges, the court first held (as several others have) that a TMDL is not self-implementing, but is an “informational tool”, developed collaboratively by EPA and the states under CWA Section 303(d), and implemented primarily by the states.

Turning to the merits, the court upheld EPA’s definition of a TMDL for a waterbody or segment as the sum of all WLAs and LAs plus natural background.  It also upheld  EPA’s authority to establish a multi-state TMDL,  when the affected states either fail to do so or ask EPA to do it (both occurred here), including limitations on sources in upstream states to achieve compliance with water quality standards in downstream states. It held that EPA’s “holistic” or “watershed-wide approach” was consistent with the broad national goals of the CWA to “restore … our Nation’s waters.” In reaching this result the court emphasized the collaborative efforts of the Bay states and EPA starting in 1983 to address the problems of interstate pollution, transported by rivers and tides, and their consensus that an EPA-led multistate effort was needed.

The court further held that the WIPs – new tools in the TMDL context – were authorized as part of the “continuing planning process” under CWA Section 303(e). This process is initiated by the states to achieve water quality goals, and is subject to review and approval by EPA. Because EPA had advised the states in letters what it expected in terms of general content and specificity in the WIPs, but left the details to the states, the court held EPA did not exceed its authority. The court also relied on CWA Section 117(g) - a Chesapeake Bay-specific provision - requiring EPA to “ensure that management plans are developed and implementation is begun by [all the affected states] to achieve and maintain…” the applicable water quality goals.

The plaintiffs also challenged EPA’s requirement that each WIP contain “reasonable assurances” of timely and effective implementation, and EPA’s use of “backstop” allocations where EPA determined that a WIP provision was deficient.  “Backstops” involved requiring NPDES permits from previously unregulated sources. The court held that EPA could properly require “reasonable assurance” under CWA 303(d)(1), which requires a TMDL must be “established at a level necessary to implement the applicable water quality standards.”  The court upheld “backstops”, which were only used in 3 instances, as a reasonable exercise of EPA’s authority under CWA 303(d)(2) to ensure that the contents of the TMDL are designed to achieve the applicable water quality goals.

The court upheld EPA’s use of models as scientifically supported and within EPA’s discretion.  It rejected the challenge to adequate notice and opportunity for public participation since (1) a 45 day public comment period had been provided, (2) there had been hundreds of public meetings during the more than 10 year development of the TMDL, and (3) plaintiffs showed no prejudice from the fact that some details of the modeling were not available until after the comment period.

The court held that TMDL establishment and implementation involves “cooperative federalism” between the states and EPA, and that the Chesapeake Bay TMDL properly reflects the shared responsibilities and necessary interactions, despite some bumps along the road. While EPA exerted strong leadership, the court held that it did not unlawfully usurp the states’ implementation functions. The court noted  the preserved authority of the states to implement nutrient trading and offsets, and to set or revise source-specific loading allocations.  In conclusion, there is a lot of thoughtful analysis, as well as precedent, in this decision, which makes it an excellent resource for CWA practitioners.

Coase: the passing of a legend in law and economics

Posted on September 23, 2013 by Rodney Brown

The legal profession lost a giant earlier this month when Ronald H. Coase passed away Sept. 2nd. You may know Coase as the economist who framed the Coase Theorem and won the 1991 Nobel Prize in Economic Science. But you may not know that Coase spent his career at a law school, not in an economics department. Or that several of his key economic insights have as much relevance for the law as they do for economics.

Coase wrote his first influential paper, The Nature of the Firm, in 1937. In it, he announced the concept of transaction costs, the notion that people must incur costs simply to participate in supposedly free market. After he recognized that it takes time and resources for someone to gather information to make a deal in the marketplace, and even more to bargain for the deal and to police and enforce it, Coase hit on the then-radical idea that people will organize themselves into firms or corporations only if it will reduce their individual transaction costs. The firm, in other words, exists because it incurs lower transaction costs to handle certain kinds of dealings.  This explains why companies grow into large, complicated behemoths, and also why they outsource functions when the external market begins to do the same job with lower transaction costs.

Transaction costs are important for all lawyers to consider, but Coase’s next big work is particularly significant to environmental lawyers. His 1960 The Problem of Social Costs introduced the idea that relatively free markets could allocate resources more efficiently than any regulatory system. Even more boldly, Coase showed that, if you assume no transaction costs, a free market reaches the most efficient result no matter how society’s property rights may be distributed initially. A polluter given the complete right to do so will pollute only as much as is socially useful, because otherwise his neighbors will pool their money to buy him out.

Interestingly, Coase never liked his idea as applied to the real world. He knew that assuming no transaction costs was big and unrealistic. In real life, there are transaction costs everywhere, as his 1960 paper noted:

This would seem particularly likely when, as is normally the case with the smoke nuisance, a large number of people are involved and in which therefore the costs of handling the problem through the market or the firm may be high.

When there are transaction costs, the market will not find the most efficient result, and it will end up imposing externalities on others. Coase felt that government regulation or taxation would often be needed to fix this problem.

So in the end, Coase was an empiricist: look carefully at each situation and decide based on the facts, not ideology, whether market forces or government action will work better. We should all raise a toast in his memory.

NB: To see more of Coase’s delightful way of thinking about the world, read this 1997 interview of him at The Ronald Coase Institute’s website.

Retroactive Stormwater Permitting – Coming to a Parking Lot Near You?

Posted on September 18, 2013 by David Van Slyke

On July 10, 2013, several different consortia of environmental organizations simultaneously filed petitions with three EPA Regional Offices asking the respective Regional Administrators to make determinations under the Clean Water Act (“CWA”) that unpermitted stormwater discharges from impervious surfaces at existing commercial, industrial, and institutional sites be required to obtain stormwater permits and to conduct remedial actions.  The three petitions (Region 1, Region 3, Region 9), jointly filed by American Rivers, Conservation Law Foundation (“CLF”) and Natural Resources Defense Council (along with different regional NGOs on each petition), ask EPA to use its CWA Residual Designation Authority (“RDA”) to require property owners in EPA Regions 1, 3 and 9 to capture and treat their stormwater runoff, which the petitioners allege is impairing waterbodies in those parts of the U.S.

Currently, in the absence of residual designation, only new construction projects, industrial sites falling within certain limited categories, and municipal stormwater sewer systems are required to obtain stormwater permits and manage stormwater runoff.  The Petitioners allege that stormwater discharged from impervious surfaces on commercial, industrial, and institutional sites are significant sources of pollutants – specifically, metals (lead, copper and zinc), sediments, phosphorus, nitrogen, and oxygen-demanding compounds that cause water body impairments – and therefore should be regulated.   

In 2008, CLF successfully petitioned EPA to use RDA to require stormwater discharge permits for existing impervious surfaces in an urban/mall area near Portland, Maine.  Property owners with an acre of more of impervious surface in that watershed are now required to control their stormwater runoff either on an individual basis (by retrofitting their property to control pollutants in runoff) or by obtaining coverage under a general permit and paying an annual fee per acre of impervious cover.  A similar NGO petition was granted by EPA Region I with regard to limited areas within the Charles River watershed near Boston.

The current petitions represent an effort to force expansion of EPA stormwater runoff control regulation in New England, the Mid-Atlantic States and California/Nevada/Arizona.  The petitioners recommend remedial actions such as conservation of natural areas, reducing hard surface cover, and retrofitting urban areas with features that detain stormwater runoff and treat pollutants in stormwater. 

EPA has 90 days to act on the petition, although action within this time frame is doubtful given the scope of the requests and the pace at which EPA has acted upon other much more limited RDA petitions.  With the very recent U.S. District Court decision in American Farm Bureau v. EPA upholding the Agency’s Chesapeake Bay TMDL for nitrogen, phosphorus and sediment, however, EPA may feel somewhat more emboldened to embrace these broad-reaching petitions.  To date, however, the Agency has been mum regarding the petitions.

Great Lakes – Great Waste

Posted on September 13, 2013 by David Ullrich

The world’s largest source of surface fresh water is surrounded by a number of nuclear plants that have been generating power and waste for well over 30 years.  Although the region has had the benefit of the power, it also has the legacy of low, medium, and high level waste that has been accumulating at these plants over the years.  There is great concern over this situation because the lakes are the source of drinking water for over 30 million people.

Currently, Ontario Power Generation (OPG) has a proposal for a deep geologic repository (DGR) for low and intermediate level radioactive waste at their Bruce Nuclear facility near Kincardine, Ontario.  The waste comes from the Bruce facility, as well as OPG’s Darlington and Pickering plants.  It is currently stored above ground    The DGR would be 680 meters below the surface of the ground and about one kilometer from the shores of Lake Huron.  Kincardine offered to serve as a host community for the DGR, and no other potential sites have been considered.  There has been extensive outreach in the Kincardine area over the past 10 years about the proposal, and some limited amount in Michigan.  Only recently has the broader Great Lakes community become aware of the proposal and some significant concerns have been raised, primarily the proximity to Lake Huron and the lack of consideration of other sites.  In addition, there is concern that this would be a precedent for more disposal sites for not only low and medium level waste, but also the high level waste from spent fuel.  The proposal is under review by a Joint Review Panel formed by the Canadian Nuclear Safety Commission and the Canadian Environmental Assessment Agency.

Although OPG has done extensive engineering and geological work, the fundamental question is whether a disposal site should be located so close to one of the Great Lakes, the source of drinking water for over 30 million people.  Also, should just one site be considered for something as significant as this?  Some have argued that there should be no more nuclear plants on the Great Lakes until an acceptable disposal solution has been found.  The reason the nuclear plants are there in the first place is the abundance of available cooling water.  It seems ironic that the convenience of locating the disposal site next to the plant to limit transportation of the waste, also results in the waste staying close to Lake Huron.  We should be able to do much better than this in the 21st Century.

Transmission Line Developers Post a Win

Posted on September 11, 2013 by Rick Glick

A federal court in Washington, D.C. gave some encouragement to transmission line developers—not to mention sponsors of other linear projects, like gas or water pipelines.  In National Parks Conservation Assn. (NPCA) v. Jewell, the court rejected a challenge to the National Parks Service’s grant of special use permits and extended rights-of-way for the Susquehanna to Roseland Transmission Line (S-R Line), a replacement and upgrade project.

The focus of Appellant NPCA’s attack was the National Environmental Policy Act (NEPA), a potent weapon in years past.  Under NEPA, a federal agency considering a “major” action must evaluate the environmental effects of the project.  After an initial Environmental Assessment, the agency either conducts a full blown Environmental Impact Statement (EIS) or issues a Finding of No Significant Impact.  NEPA’s purpose is to ensure that the agency takes a “hard look” at the environmental tradeoffs of its intended action, but once having done that, it can decide to move forward regardless.  In other words, NEPA is a procedural statute, but lacks teeth to prevent the agency from acting.

Still, NEPA has proved effective in stopping projects in their tracks.  The usual avenues of attack have been whether the agency should have written an EIS, whether it considered all reasonable alternatives, whether the EIS needs updating, and whether the project should be seen in a larger context of other similar developments or as part of a broad program.  In recent years, however, the agencies have learned how to beat back such challenges.

The NPCA made allegations on similar bases here, but this time to no avail.  The Parks Service’s EIS took an adaptive management approach to mitigation, anticipating that the mitigation plan would evolve.  The NPCA argued that the EIS must analyze the mitigation ultimately decided on, but the court was satisfied the agency had taken the requisite “hard look.”  Nor did the court find a supplemental EIS necessary because the “new information” adduced by the NPCA concerned environmental effects that were already within the scope of the EIS.

The NPCA also argued that the alternatives analysis in the EIS was lacking because it didn’t adequately consider the no-action alternative.  In this case, the no-action alternative would be to pursue a non-transmission approach, such as distributed energy.  The court deferred to the Parks Service’s analysis that this alternative would not meet the objective of improving the reliability of the applicants’ existing line.  The court found that the Parks Service rationally considered and rejected the no-action alternative.

The court also rejected the argument that the Parks Service should have analyzed the environmental effects of the entire S-R Line, and agreed the agency could look just at the consequences of extending the right-of-way.  The judge took note of the fact that the project sponsors could have reconstructed the line on their existing right-of-way, and therefore there was no functional difference between the reconstructed line on the proposed right-of-way and the existing one.

The court’s approach in this case is consistent with NEPA case law in recent years.  Agencies will be given some deference in their decision making, so long as their NEPA documents indicate a good faith effort to look at environmental impacts.  Project opponents can no longer rely on NEPA as a reliable weapon to block development. 

Meet Tom Johnston, General Counsel of the Alabama Department of Environmental Management

Posted on September 9, 2013 by Jarred Taylor

For those of you who interact now with, or may in the future interact with, the Alabama Department of Environmental Management (ADEM), whether its staff or the lawyers who make up ADEM’s Office of General Counsel (OGC), meet ADEM’s General Counsel, Tom Johnston:

Q:    Tell me a little bit about your background, how long you've been at ADEM, how long as General Counsel, and the make-up of the OGC.

A:    I attended the University of California, Berkeley, earning a B.S. in Resource Economics, and came back home to Alabama to get my law degree from the University of Alabama School of Law, receiving my J.D. in 1983.  I have been with the OGC for 25 years, representing ADEM in civil enforcement actions, in defensive litigation before the Alabama Environmental Management Commission (AEMC), and in state and federal courts, both at the trial and the appellate levels.  I was appointed as the agency’s General Counsel in 2010, following the retirement of long-time General Counsel Olivia Rowell.  Currently, there are nine attorneys on staff with the OGC, including myself.  While an effort is made to allow staff attorneys to develop expertise by working closely with an assigned ADEM program, our attorneys are also encouraged to provide assistance outside their assigned area, which allows them to expand their individual experiences and remain current in the broad array of environmental law.

Q:    What has been one of the more interesting or challenging legal issues you or the OGC has handled, and how did it turn out?

A:    The case that comes to my mind is one that presented significant issues of public health and safety, combined with the complexity of the underlying subject matter and the science and technology involved.  I refer to the permit appeal and legal challenges lodged against the Chemical Weapons Incinerator built at the Anniston Army Depot in Calhoun County, Alabama to destroy the stockpile of chemical agent and munitions that had been stored at the depot since World War II.  The potential impact on the surrounding communities from an accidental release of aging chemical agent was down-right frightening, regardless of whether the release was the result of continued storage, an operational accident, sabotage, or terrorism.  From beginning to end, the permits issued by ADEM for the incinerator underwent the most detailed processing and review in the Department’s history, a process that extended beyond ten years.  As the attorney in the Office of General Counsel assigned to the case, I provided assistance along the way, from the public hearings during the notice and comment permitting, to the administrative permit appeals initiated before the AEMC, to collateral challenges lodged in trial court and pursued through appellate review.  The administrative hearing in the permit appeal was the longest in ADEM history and, at over 700 pages, generated the most extensive recommendation to date from an AEMC hearing officer.

In the end, 12 years after the Army’s initial application to ADEM, the Supreme Court of Alabama upheld all permits issued by ADEM, without modification.  For myself (and the Army, DOD, and private attorneys also involved), the joy and professional satisfaction of obtaining that legal victory will be long remembered.  Even so, that joy was surpassed in December, 2011, with the announcement that the incinerator had destroyed the last remaining munition, and had forever removed from the consciousness of that community the specter of an agent-related accident.  Over the life of the incinerator project, more than 4.5 million pounds of chemical agent – including over 600,000 rockets, projectiles, mines and mortars – were successfully and safely destroyed without major incident.

Q:    ADEM has changed over the years, and I know the OGC has changed, too.  What are some of the more significant changes you’ve seen in your time at ADEM?

A:    The more significant changes I have witnessed during my twenty-five years with ADEM result from advancements in information technology.  From advances in word-processing and database management to electronic filings and use of the internet, these developments have fundamentally changed not only how we handle the Department’s business, but also the public’s ability to interact with ADEM.  Utilizing the tools now available through advancements in information technology and the internet, ADEM is now one of the most transparent agencies in Alabama state government, and a leader in transparency among the state environmental agencies in EPA Region IV.  With the development of the ADEM website, citizens now have access to a wide range of electronic data and may tailor search queries by facility name, permit number, or location and community.  Through our website, citizens may now file complaints and research information.  The Department has engaged in a concerted effort through workshops and community outreach to provide “how-to” instructions on using the ADEM website.  Regulated entities also have benefited through the ability to file reports electronically, such as discharge monitoring reports, thereby avoiding potential mistakes and errors from manual entry of data.

Q:    Is funding still a big problem for ADEM and the OGC?  What are some other significant issues?

A:    Funding and budgetary constraints at the state and federal level continue to present some of the most significant challenges to ADEM I have observed since joining the staff in 1988.  As a result, ADEM has had to take steps to cut back and streamline.  Last summer our director announced the sale of the Department’s surveillance airplane.  A hiring freeze was implemented and staffing levels have decreased through attrition.  In the Office of General Counsel, we have not filled two attorney slots and one of our support positions.  Employees have not received merit raises in five years, cost of living adjustments have been stayed, and promotional opportunities are limited.  Yet, even with these constraints, environmental management by ADEM has performed in the upper percentile in national rankings.  I give credit for these rankings to the dedicated men and women who staff ADEM, and the guidance and leadership from the front office.  

Q:    Are there particular legal or substantive issues the OGC or ADEM is working on that you can share; or perhaps issues you see coming down the road with which ADEM or the OGC will have to deal?

A:    One issue we are seeing on a recurring basis arises from activities conducted by business organizations that enjoy limited liability under state law, i.e. limited liability companies or “LLCs.”  What was once a form of business organization little noticed by ADEM, the use of LLCs appears to have skyrocketed in areas of activity subject to ADEM regulation.  Whether the activity involves development of a residential subdivision, or the operation of a private wastewater treatment facility, when a LLC engages in activities that result in significant environmental impact and damages, the assertion of limited liability by those responsible stymies enforcement efforts and limits the ability of courts to grant relief.  When construction activities undertaken by a LLC result in impacts to streams and tributaries, or damages the property of adjoining land-owners, courts are looking at ADEM and private plaintiffs and asking: “What can I do if there are no assets in the company?”  We are aware of cases now where the limited liability form of organization has resulted in either no remediation of impacted property, or emergency response remediation conducted on the public dime.  In this respect, the LLC business organization has allowed the de facto shifting of financial responsibility from the LLC investors to others.

Coming Attractions: Sea-Level Rise, New IPCC Reports, and Floating Wind Power Projects

Posted on September 4, 2013 by Jeff Thaler

There has been a flood (no pun of course) of new stories this month about rising sea levels, acidifying oceans, drought-driven wildfires, and extreme weather events in the U.S. and globally. At the same time, with the official release of the eagerly-awaited Fifth Assessment Report of the Intergovernmental Panel on Climate Change due in several weeks, leaks of a draft portion of the Report are coming out in the media, indicating increasing confidence in the underlying science and in a substantial human role in warming, primarily as a result of burning fossil fuels. Additionally, as reported in the N.Y. Times, it appears that the draft projects that sea level could rise by only about 10 inches by 2100 under the “most “optimistic” scenario. But “at the other extreme,” with emissions continuing to swiftly increase, “sea-level rise could be expected to rise at least 21 inches and might increase a bit more than three feet” by the end of this century—which “would endanger many of the world’s great cities — among them New York, London, Shanghai, Venice, Sydney, Australia, Miami, and New Orleans.” Some believe that the FAR will still understate the likely forthcoming climate disruptions.

Coincidentally (or not?), those of you who still subscribe to the National Geographic Magazine would have seen in August a cover story entitled “Rising Seas”, which leads off with questions a panel of ACOEL members will (coincidentally?) in part be addressing at our Annual Meeting in Boston: “As the planet warms, the sea rises. Coastlines flood. What will we protect? What will we abandon? How will we face the danger of rising seas?” . And rising sea levels are especially of relevance to any ACOEL member living in a state on the Atlantic coast, because sea levels have been rising three to four times more rapidly off the Atlantic Coast than the global average, according to a recent study. For those of you living between the coasts, the San Francisco water supply and Yosemite National Park are both threatened by an out-of-control wildfire, while the western United States are experiencing significant drought.

And while forests burn and seas warm, acidify, and rise, one good news story was the recent launching in Maine of the first grid-connected floating wind turbine outside of Europe.

It also is the first concrete-composite floating wind turbine in the world, using advanced material systems with a unique floating hull and tower design.  The 65 ft tall turbine prototype is a one-eight-scale version of a 6 MW, 423 ft rotor diameter design.  Currently being developed by the University of Maine and beginning preliminary environmental and permitting work, Maine Aqua Ventus I had been selected by the Department of Energy early this year out of 70 competing proposals as one of 7 winners of $4 million in initial funding.  The project is now a finalist for an additional $46.6 million in funding. This project is critical, because floating offshore wind energy projects have the potential to generate large quantities of pollutant-free electricity near many of the world’s major population centers (but far enough away, in water depths up to 400’, to not be visible from shore), and thus to help reduce the ongoing and projected economic, health, and environmental damages from climate change. Wind speeds over water also are stronger and more consistent than over land, and have a gross potential generating capacity four times greater than the nation’s present electric capacity.

(Full disclosure:  I am legal counsel for the project)