A federal task force of the EPA and a host of federal agencies are currently working on a proposal, due to President Obama by June, on carbon capture and sequestration (CCS) policy; they’re now holding a series of public meetings (for background on CCS generally, see the CPR Perspective I wrote examining some of the arguments for and against). I had a chance recently to discuss with members of the task force the key property rights and takings law issues associated with injecting billions of tons of CO2 into the ground. Here are some of the points I made:
In order to store the billions of tons of CO2 a kilometer below the surface over millions of acres (which is what will be required to use CCS as a viable climate change mitigation technology) lawmakers will need to address the extent to which that subsurface pore space is in private ownership and, if so, how to acquire it. The Fifth Amendment provides that private property can only be taken for a public use, and that just compensation must be paid. So the questions are, first, is there a protectable property interest in subsurface pore space that triggers the takings clause in the first place and, if so, will a government action to use, allow someone else to use, or place restrictions on that pore space be a taking of such property that requires just compensation?
With regard to the first question, simply because someone has a property right in surface lands, does that also mean the owner has property rights in subsurface pore space? We know that there are subsurface property rights in oil, gas, and subsurface minerals, but here we are talking about the subsurface pore space that houses those minerals. There is some precedent with regard to ownership of the airspace above and resources below that may provide some guidance. It used to be said that surface owners had ownership rights up to the heavens and down to the center of the earth. Then came the more frequent use of air travel, and federal government regulation of the air space to facilitate air travel. At that point, the Supreme Court held categorically in Causby v. United States and other cases that property owners do not own “up to the heavens” above their property. We generally control only the airspace that we reasonably use in connection with our surface use. We can prevent nuisances, but we can’t prevent occupation of the higher airspace – that is now in the public domain regulated by the federal government.
Full textCross-posted from Legal Planet.
As oil drifts on and offshore in the Gulf of Mexico, forcing the closure of wildlife refuges and more fishing grounds, Interior Secretary Ken Salazar has called a temporarily halt to new offshore drilling while his staff prepare a report on the disaster and even Republicans in Congress are calling for new investigation of the troubled Minerals Management Service.
Clearly, things didn’t go as planned on the Deepwater Horizon. Notwithstanding Rush Limbaugh’s wild accusations of environmentalist sabotage, no one has seriously suggested that the fire, the sinking of the rig, and the failure of the blowout preventer were anything but accidental. But that’s far from the end of the story. Accidents are not always unforeseeable or unpreventable. BP, its contractors, the Minerals Management Service, and the Coast Guard could have and should have foreseen the possibility of a blowout, but in typical human fashion they preferred a more rosy outlook.
From an environmental law perspective, perhaps the most depressing aspect of this disaster is the extent to which it seemed to catch everyone by surprise. We’ve long had regulations in place under the National Environmental Policy Act that are intended to force a more careful advance look. But that didn’t happen. Dan Farber is right to see this disaster as a call for better risk assessment for offshore drilling. But (as I know Dan is well aware), simply mandating worst case analysis or better risk assessment won’t make it happen. The Gulf oil spill highlights the slippage between the law and the reality of environmental analysis for offshore drilling. It is a story of institutional failure as much as of equipment failure, and the postmortem should include exploration of how the institutions might be improved.
The lesson to be drawn is not that NEPA review is useless. But environmental review as practiced in the US does have some important limits, and even where it could perform well it needs better implementation and oversight. I offer these tentative thoughts about lessons from the Deepwater Horizon for the law and practice of environmental review.
NEPA can’t catalyze some of the thinking we should want, because that thinking needs a larger forum. NEPA sets up a project-by-project approach to environmental review. It’s hard to see the cumulative effects of a variety of actions from that perspective, as the Council on Environmental Quality recognizes. More than that, NEPA is an awkward tool for comparing a proposed action with very different approaches to achieving the same goal. One goal of offshore drilling in the Gulf, for example, is to reduce dependence on foreign oil. That’s a laudable goal with environmental as well as national security implications since, as Melinda Taylor recently pointed out, “the transportation of crude in tankers from the Middle East and elsewhere is responsible for 45 percent of the oceans’ oil pollution.” But its a goal that is just as well served by any method of conserving or generating energy.
Full textToday the Center for Progressive Reform releases a briefing paper on Chesapeake Bay policy in anticipation of the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Protection and Restoration. The Choose Clean Water Coalition also today sent a letter to EPA Administrator Lisa Jackson stressing that EPA's strategy for the Bay must have robust requirements and tough consequences.
By next Wednesday, one year to the day after the Executive Order, the Federal Leadership Committee—made up of representatives from a range of federal agencies—is required to release its final Strategy for Restoration and Protection of the Chesapeake Bay. The final Strategy will integrate the draft reports issued under section 202 and the draft Strategy issued under section 203, all of which were previously released for public comment (See our comments from January). In the coming months, the future of Chesapeake Bay restoration will take shape. In addition to the release of the final Strategy, Bay states will begin to submit their preliminary Phase I Watershed Implementation Plans and EPA will finalize the Bay-wide Total Maximum Daily Load (TMDL). Collectively these developments promise to do what past Bay restoration efforts have not: to hold Bay jurisdictions and EPA accountable to specific commitments and hard deadlines. However, with much of the economy still in distress and a lack of resources in every Bay state, it is difficult to imagine that they will be able to consistently meet their commitments. In its new leadership role, EPA must distinguish between genuine efforts that fall short and intentional foot-dragging that fails to meet these commitments.
Full textCross-posted from IntLawGrrls.
Today's New York Times update on the Deepwater Horizon disaster opens with BP’s failed efforts to control the remaining two leaks via concrete, or remote control robots. Strangely, the article makes no mention of the missing remote shut-off valve called an acoustic switch. This $500,000 device might well have prevented this whole catastrophe. But, the United States does not require that deepwater oil rigs install an acoustic switch, and BP and Transocean decided to forego it. The United States considered requiring these switches in 2000, but Bush administration nixed the idea after industry pushback. My guess is that Vice President Cheney's secretive Energy Task Force had a hand in that, but since the Task Force operated entirely behind closed doors, we may never know the truth of how the United States made this ill-considered choice. Apparently, the Times does not consider the fact that this device, which is required in other major off-shore drilling countries, like Norway and Brazil, didn't make the company's cost-benefit cut, to be part of “all the news fit to print”.
With that critical piece of information missing, the Times tells us a tale of plucky engineers trying innovative solutions that, by gosh, just might work. The article is full of solemn quotes like "as so many other response efforts so far have shown, engineering problems that can be solved on the ground can prove perilously stubborn 5,000 feet underwater." The coverage has a "Gee, who could have guessed" quality that is extremely disturbing.
Full textEPA Administrator Lisa Jackson was in a tough position on coal ash. If you are African American and low-income, you have a 30 percent greater chance of living near a big pit of this toxic brew than a white American, so Jackson correctly decided that such an important environmental justice issue should be at the forefront of the Obama Administration’s agenda. But Jackson was also taking on Big Coal, a special interest historically near and dear to swing voters in Ohio and Illinois. Nevertheless, this sturdy “eco-warrior,” as she was recently dubbed by Rolling Stone, marched forward, right into the basement of the White House and the chilling influence of Cass Sunstein and the economists at the Office of Information and Regulatory Affairs.
Jackson’s tough, but as yet secret, regulatory proposal arrived in crisp fall weather, only to be greeted by a tsunami of industry lobbyists, who visited and revisited the Office of Information and Regulatory Affairs. By the time the spring flowers were out, Jackson was forced to take a pass on getting hard-hitting regulation on a speedy path to implementation. After the long scuffle with OIRA, she instead announced that EPA was considering two strikingly different alternatives, thereby postponing any definitive action for at least six months and, far more likely, a year or more. Then, to add insult to injury, she stepped in between angry activists and OIRA, trying in vain to slap lipstick on a not particularly cute pig.
Jackson called her mammoth 563-page Federal Register a “proposed rule” but in every reasonably understood sense of that term, it is nothing of the sort. Instead, it has what we can call an “OIRA/industry proposal;” an “EPA/environmentalist” proposal; and a proposal so bad that it has no parents. Because EPA is actively considering two very different approaches and potentially a third, unimaginably bad idea, no concrete target emerged from this latest round of negotiation. Instead, EPA will almost certainly have to go back and get another round of public comment on a single approach before making a final selection. Or, as EPA announced haplessly: “Given the inherently discretionary nature of the decision, the complexities of the scientific analyses, and the controversy of the issue, EPA wants to ensure that the ultimate decision is based on the best data, and is taken with the fullest possible extent of public input.”
Full textCPR President Rena Steinzor has issued this statement on today's coal ash news. She says:
Because EPA is actively considering these two very different approaches, it has not actually proposed anything from a regulatory perspective. The EPA will almost certainly have to go back and get another round of public comment before making a final decision, which is not what Jackson wanted when she walked into OIRA’s door.
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The White House has met with industry representatives on this issue literally dozens of times, and it's no surprise those meetings netted a delay. The administration could and should have moved ahead months ago with one strong proposal to tackle toxic coal ash.
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EPA is making an announcement right now. We'll have more soon.
Update: EPA's announcement is up.
Full textCross posted from Legal Planet.
A couple of key observations about the oil rig blowout, based on my work on disaster issues.
First, “human error” is a cop-out when you’re dealing with major technology. It’s not like human fallibility is a surprise. Training, good management, and smart design should be the responses, not whining after the fact that the workers weren’t perfect. Or, if human error is unavoidable and the outcome would be catastrophic, you’d better rethink the project.
Second, it’s probably true that this was a very unlikely way for an oil rig to go wrong, but that doesn’t mean much. Suppose this was an eight-thousand-year event at any given oil rig. That is, you’d expect to have such an accident at that rig once in eight thousand years, or to put it another way, the odds in any given year at any given rig are 1 in 8000. You could imagine that the engineers might have thought that was pretty darn safe. (And not just engineers: in the Benzene case, the Supreme Court expressed uncertainty about whether a 1 in 1000 risk — nearly ten times greater — was significant enough to worry about.)
A one in eight thousand year accident sounds very remote, but it’s actually a recipe for disaster. As it happens, there are over 800 manned U.S. rigs in the Gulf. So you’d expect an “eight-thousand-year accident” to happen somewhere in the Gulf about once every ten years. If you’re unwilling to live with anything more than a 1% chance per decade that this kind of accident will happen in the Gulf, you need to get the annual odds at any given rig down to 1/800,000!
Full textCross-posted from Legal Planet.
The National Environmental Policy Act (NEPA) is the nation’s look-before-you-leap environmental law, intended to make sure that we understand what environmental problems we might result before we act. To that end, federal agencies must prepare an environmental impact statement (EIS) before they take, authorize, or provide funding for actions that may have significant adverse environmental impacts. Useful as NEPA analysis is, the Deepwater Horizon disaster vividly illustrates the need to fix one of its shortcomings.
The White House’s Council on Environmental Quality (CEQ) oversees NEPA compliance. It has issued regulations prescribing how agencies should prepare EISs and what should be in those documents. The regulations are almost unchanged since they were originally issued during Jimmy Carter’s presidency, with one conspicuous exception. Where the impacts are uncertain or unknown, the regulations used to require that the EIS “include a worst case analysis and an indication of the probability or improbability of its occurrence.” Sensible as it sounds, that requirement was renounced in the Reagan administration in favor of a vague call to evaluate “reasonably foreseeable” environmental impacts, including low-probability but potentially catastrophic impacts, “provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.”
Full textEarlier this month an Oklahoma jury awarded $7.3 million to current and former poultry growers for fraud, negligence, and violations of a state consumer protection act committed by Tyson Foods, Inc. This verdict is not surprising as Tyson, like other major poultry processors, wields considerable economic clout in its relationship with poultry growers. This imbalanced relationship suggests that the “independent contractor” status of poultry growers that Tyson and other major poultry processors describe is a trick for the companies to disclaim any responsibility for the highly pollutant-concentrated poultry waste, which contaminates waterways around the country.
Like other corporate poultry processors, Tyson relies on a network of poultry growers around the country. The growers enter into a contract with the company, which retains nearly total control of the growers’ poultry operations. Tyson provides the physical materials for the poultry operations—from chicks to feed—and specifies the growing conditions for the chickens. The growers are considered independent contractors, but as the Oklahoman explained, “Tyson’s vertically integrating chicken growing system exerts a lot of influence over their operations.” Many growers say the contracts are inherently unfair and favorable to Tyson, which enjoys substantial economic clout.
From an environmental perspective, what is noticeably missing from Tyson’s “vertically integrated system” is the company’s responsibility for the poultry waste produced by the growers’ poultry operations. I wrote previously about the Oklahoma Attorney General’s suit against Tyson, which sought to hold the company, rather than the growers, responsible for the highly pollutant-concentrated poultry waste under various federal environmental laws as an integrator
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