Posted on March 10, 2017
The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.
In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.
The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”
Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”
The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups.
PS: As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”
Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.
Posted on October 11, 2016
Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba. My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba. Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.
As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality. But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand. With its socialist roots and communist goals, most important in Cuba is equality: equality between bricklayers and brain surgeons, as well as between women and men. And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices. Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect. For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution. It is simply breathtaking and a great example of Cuban potential. Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.
As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance. Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962. In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement.
Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee. With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including: radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.
With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species. However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry. Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources. Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful. And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation. But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.
I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!
Posted on October 10, 2016
Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba. I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there. We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.
One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life. Most, though, expressed optimism for the future of their country.
You may find some of the notes below inconsistent or contradictory. I think that’s reflective of the differing viewpoints and experiences to which we were exposed.
Sept 7, 2016: Meeting with Political Scientist /Publisher/Editor
• Cuba in transition; you are here at a special time
• Changes had already occurred before December 2014; more changes since then, and more to come
• Electoral system: Citizens vote for representatives to the National Assembly/ Assembly chooses President and Vice President
• Raul Castro has committed to step down in 2018
• Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro
• Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers
• Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals
• In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.
• Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.
• The outside perception of Cuba may be that Cubans have the least available access to world views through the internet. However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.
• Human rights issues remain, including prohibition on founding political parties
• Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.
- This year: expecting the total to be more than 500,000
• Key issues for updating the Cuban socialist model:
- Have to confront increased social inequality & poverty
- About 20% suffering from poverty; 4 times more than 20 years ago
- Yet others are achieving higher overall income with salary plus additional sources of income. Income differential and poverty must be dealt with.
- Severe housing shortage is a critical problem.
- Housing in bad condition/ and housing shortage
- Super centralization as a defensive posture
- Overextended bureaucracy
- Water supply/ energy supply problems
- 20% of Cubans are over 60; by 2025, that will be up to 25%
- Life expectancy is about 80 years
- Population growth rate = -1.5%
- Birth rate has been low since early 70s
- Surge of migration. 65% more than the year before. Up by 45,000 this year.
- Media: all media is currently government media
- Inconsistent economic system
- High dependency on imports
- Low domestic food production and industrial output
• Last of the key issues/problems: U.S. policy toward Cuba
- Negative impact of embargo
- Fortress mentality
- Travel restrictions for U.S. citizens
• Cuban culture is closer to American culture than that of any other country in the region
Sept 7, 2016: Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science
• The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).
• Among other things, it manages protected areas in Cuba.
• Foundation has collaborated with foundations/NGOs in U.S., and there have been visits back and forth
• Biggest problem is that the embargo gets in the way of funding from U.S. institutions
• Over 50 international cooperative projects over the past 21 years
• Goal of conservation of Cuban biodiversity and geographical diversity
• Problems: invasive species/ pollution/ climate change/mining
• Existing environmental legal framework:
- National environmental policies, strategies and legislation
- Article 27 of the Constitution on protecting environment
- Law number 81: Approved 1997
• Cuba has entered three treaties/conventions: on bio diversity, climate change, and drought.
• Most important current issues are seen as:
- Soil degradation
- Loss of biodiversity
- Damage to forest cover and lack of water
- Climate change vulnerability
• Where does Cuba go from here? Varying views expressed:
- Process of last 60 years for environment has been good/big question is how to preserve going forward as things change
- Having to redefine behavior and economy
- Problem of dealing with laws on the books that reflect a former reality
- We are a country rich in spirit and ideas, but we are poor in our economy
- How to organize the economy?
- Challenge: don't take the same directions that others took 100 years ago
- Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
- Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
- Right now it is reactive, not preventive.
• General discussion among them:
- Need to access financing and technology to protect the environment and human settlements
- Existing law based on national/fed strategy and structure. No local structure.
- No legal framework to determine the information you need and which set of regulations applies. There can be conflicting regulations from one ministry to another. This needs to be combined and systemized.
- No unity on legislation, on what it means; you get lost looking for information.
- Same on pollution controls: different regulations from different ministries. Cleanup standards as example: One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
- Implementing ministry does not itself have the power to enforce. Other institutions may have power to enforce. So there is an issue on means of enforcement.
- Current law already has a way to incentivize local application of laws or enforcement of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring
Sept 7, 2016: Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)
• The official worked at CITMA until she retired in 2014. Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.
• Overview of environmental law in Cuba:
- Until 1990, done empirically
- But after 1990, determined to be in interest of the state and the agency to control environmental issues
- Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
- Continues under Ministry of Science
- Within the Ministry, there is an Agency on the Environment
- There are several other institutions within the environmental agency.
- Local administrations propose areas to protect: geographic areas/not topics
- The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
- Ministry works together with local government
- When a company wants to work in one of these areas, it has to pass consideration by a commission that considers what company wants to do
- Ministry of Science issues permits to companies to work in these areas.
- Ministry's model for development requires compliance with permits: risk, air quality etc. within one permit roof
- Ministry follows UNESCO standards for protection of biosphere
- Other ministries also have an interest: geographical and others including tourism
- Other involved institutions: Ministries of Mining, Energy, Tourism, for example, depending on project.
Sept 9, 2016: Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment
• They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better
• But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments
• Since 1992, Cuba has been on path to amend laws to meet international commitments
- As a result of those commitments, have to revamp institutions:
- Such as sustainable development
- But need a clearer legal framework to make it work better
• Biggest problem here has been adaptation, as opposed to remediation
• But now: a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this
• Per the Paris Accord, we have to deal with adaptation as well as mitigation
• Have to regulate technology to regulate environment
• Should look to integrate all of the different laws
- Right now, each agency issues its own regulations
- Would be good to integrate and facilitate within one unit
• Specific focus could be to introduce a legal framework for the verification of remediation, mitigation and adaptation.
• Currently, each ministry issues resolutions: their own general determinations to be followed
• Vertical governmental structure:
- Municipal/provincial/ national
- Local decisions cannot contradict national or provincial decisions
- They don't have equivalent of state legislation
• CITMA decisions have to be observed all over the country
• Each province also has experts in each area, representing the Ministry in the region
• Same at municipal level
• There are civil and criminal penalties in the current environmental laws
• The environmental laws are meant to be preventative but there have been sanctions
• Ministry of Justice tends to have all fines and sanctions in one single act. And they do find efficiencies here, having fines and sanctions centralized within one act.
• There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments
• Almost everything needs an environmental license of some degree: Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical
• Mariel Port district being dealt with very firmly and strictly
• There are municipal/ provincial/national courts, including specialty courts like the environmental court
Posted on September 16, 2016
Usually we associate uniqueness, grandeur, history, and pleasure with our National Monuments and National Parks. With President Obama’s August 24, 2016 Declaration of Katahdin Woods and Waters National Monument…not so much.
The controversial designation comes after a decades-long campaign by Roxanne Quimby, founder of Burt’s Bees natural cosmetics company, who was unabashed in making it clear that she saw this as a personal legacy. Through her efforts and expense, more than 87,000 acres were obtained over the years and then donated to the U.S. on August 23rd. The President acted the next day.
In acquiring the overwhelming underdeveloped land accessible only by dirt roads, Quimby had already restricted or limited the traditional logging, snowmobiling and hunting activities on much of the property, which did not endear her to locals or some visitors. Further, logging groups and others concerned with increased federal restrictions raised concerns about road safety for the additional visitors expected to travel on the private logging roads providing access to the new National Monument and the loss of timberlands, especially if a national park were ultimately created. (A number of national parks started as national monuments.)
Although the Department of Interior photos of the Monument show Mount Katahdin, a truly spectacular mountain in the Maine’s Baxter State Park, the National Monument lands only provide distant views of the mountain, not access to the state park or the mountain. Critics point out that there are no developed roads or camping sites on the National Monument lands, and local towns gain little advantage from the designation because traffic doesn’t flow through them to the remote location. Undeveloped Maine woods are beautiful but remote. Few people would go (way) out of the way or buy a “high clearance vehicle” to reach them -- and there are vast, undeveloped state and private forests at least as picturesque, more accessible and offering similar or better recreational opportunities. Ever heard of the Allagash Wilderness?
Most believe a majority of Mainers did not support the national park proposal, but no state-wide poll was conducted Many Mainers, three-quarters of Maine’s congressional delegation, Maine’s governor and the state legislature had opposed the concept, and the majority of the congressional delegation had opposed even designation as a national monument. With no wave of support for the national park and lacking the congressional support required for a park, the option left to the President to lift his pen.
Maine is a wonderful place to visit, live and work, and has legitimate claims to its self-proclaimed moniker “Vacationland.” But unless you are truly seeking generic backcountry experience (and competing with logging trucks on unpaved roads to get there), my recommendation is that you visit Baxter State Park and climb Mt. Katahdin (the northern terminus of the Appalachian Trail), or explore Acadia National Park on Mt Desert Island. At least I can promise you won’t be disappointed.
Posted on June 6, 2016
Who knew? On May 19 those wild eyed environmentalists on the Senate Appropriations Committee unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work. The bill now goes to the full Senate for a vote and, if it passes, back to the House for reconciliation.
Of particular interest, the bill breathes new life into the moribund Watershed and Flood Prevention Operations Program. This little known program is supposed to fund land and water conservation efforts at the watershed level, but has long gone unfunded and unloved. The new bill would appropriate $150 million, which would be the first appropriation since 2010. Less than the Administration proposed—and not nearly adequate, of course—but nevertheless, new money that could serve important purposes.
Oregon Sen. Jeff Merkley, a member of the Appropriations Committee, sees an opportunity for addressing habitat needs for fish and wildlife, particularly the spotted frog, as well as aiding rural communities. The U. S. Fish and Wildlife Service listed the spotted frog and designated critical habitat in Central Oregon. Indeed, irrigation districts in the area are making plans to compete for the funding to help with irrigation equipment upgrades and replacement of open canals with pipes. Such efficiency and conservation efforts reduce pressure on habitat for the spotted frog and other species.
It will be interesting to see if a sister program, the Land and Water Conservation Fund, established by Congress in 1965, can find a receptive ear as well. As described by the LWCF Coalition:
It was a simple idea: use revenues from the depletion of one natural resource - offshore oil and gas - to support the conservation of another precious resource - our land and water. Every year, $900 million in royalties paid by energy companies drilling for oil and gas on the Outer Continental Shelf (OCS) are put into this fund. The money is intended to create and protect national parks, areas around rivers and lakes, national forests, and national wildlife refuges from development, and to provide matching grants for state and local parks and recreation projects.
Unfortunately, for many years Congress has diverted the funds for other purposes, leaving a multi-billion dollar backlog in maintenance and enhancement projects. There’s no direct connection between the LWCF and the Watershed and Flood Prevention Operations Program, and no particular reason why funding of one would lead to funding the other. Still, Sen. Merkley, if you are reading, this one might be added to your to-do list!
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.