E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

Thanks to K.B. Battaglini of GT Houston for this post.

What with Interior Secretary Ken Salazar seeking to re-impose an unpopular moratorium on deep water drilling, and with New York and Pennsylvania experimenting with various moratoria to quell drilling in the Marcellus Shale, Texas State Representative Lon Burnam (Democrat, Fort Worth) has gotten into the act by calling for a moratorium on new natural gas drilling in the Barnett Shale due to allegedly high benzene levels from existing gas production. Burnam, a minority member of the Texas House Committee on Environmental Regulation, asserts in an editorial in the Fort Worth Star Telegram that "fugitive emissions" of benzene at compressor stations exceed the exposure limits recommended by the Agency for Toxic Substances and Disease Registry. However, the exposure cited by Burnam does not result from drilling but from compression, and Burnam does not address how a drilling moratorium is intended to address the compression issue.

Bryan Shaw, Chairman of the Texas Commission on Environmental Quality, who holds a Ph.D. in agricultural engineering and is an associate professor in the Biological and Agricultural Engineering Department at Texas A&M University, says the benzene levels pose no immediate health risk, because health problems would arise only after exposure for 24 hours a day for 70 years.

Burnam's proposed moratorium is an outgrowth of election-year politics in Texas, as the race for Governor pits incumbent Rick Perry  (a Republican and proponent of drilling in the Barnett Shale) against Bill White (a Democrat and proponent of tough action against individual producers who violate pollution control standards).

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One of the most significant obstacles to deployment of clean energy in the U.S. is opposition litigation filed by “environmentalists.”  For example, a support group for disgruntled government bureaucrats called “Public Employees for Environmental Responsibility” (PEER) has filed suit against the federal agencies that, after nine years of review, granted permits for a 130-turbine wind farm proposed for Nantucket Sound. The suit, filed in U.S. District Court for the District of Columbia, alleges violations of the Endangered Species Act, the Migratory Bird Treaty Act, and NEPA. 

This perverse case demonstrates that the federal permit and review process is horribly broken.  To begin with, nine years of government review is a prima facie disgrace.  And, allowing lawsuits, whether by disgruntled “public employees” in all of their arrogance and disregard for the taxpayers (check out the PEER website - first you'll laugh, then you'll cry), or by anyone else, to delay an approved clean energy facility is irrational and indefensible.  If Congress is serious about promoting clean energy, then it must make permit reform a top priority.    

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Robert Bryce, a senior fellow at the Manhattan Institute, lays out a cogent "reality-based" analysis of US energy needs and policy in his new book, "Power Hungry."   This book is not a simple-minded, ideological rant.  On the one hand, Bryce opposes mountain top coal mining due to its ecological impact.  But, on the other hand, he is honest enough to recognize the policy implications of the fact that just one coal mine in Kentucky produces the equivalent of 75% of the energy produced by all wind and solar sources in the U.S. combined. 

Bryce says that energy policy must be based upon four imperatives: "power density, energy density, cost and scale."   Wind and solar power fail due to storage problems and weather.  He points out that Denmark, the poster child for renewable energy, nevertheless imports hydroelectric power from Norway and Sweden, relies heavily upon North Sea oil and coal, and increased its greenhouse gas emissions by 2.1 percent between 1990 and 2006.  Given the environmental cost of hydro-power ("ruining habitats for aquatic life"), oil spills, and coal mining, Bryce makes a strong case for heavier reliance upon natural gas, a relatively clean and readily available carbon fuel, as a bridge technology: "The smartest, most forward-looking U.S. energy policy can be summed up in one acronym: 'N2N'," for "natural gas to nuclear power."

The Democrat leadership in the Congress, which is figuring out where to go with energy legislation, would be well-advised to give Bryce's prescription careful consideration. 

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From our press release:

The beneficial effects of nanotechnology innovation on human health and the environment are the focus of a comprehensive report to be presented at the Nano Science and Technology Institute’s Nanotech Conference and Expo 2010 in Anaheim, CA, June 21-24, 2010....Nanotechnology may substantially improve the quality of both human life and the natural environment, according to the authors of the report: Chinh H. Pham, Chair of Greenberg Traurig’s Nanotechnology Practice; Reed D. Rubinstein, Shareholder in the Environmental and Administrative Law Practice at Greenberg Traurig in Washington, D.C.; Dr. Richard C. Pleus, Managing Director of Intertox; and Lynn Foster, CEO of BPT Pharmaceuticals, who was previously at Greenberg Traurig. The EHS risks of nanotechnology require additional study. However, initial indications are that these risks are generally remote, speculative, and manageable, according to the report. It is now available for download at Nanotechnology - Greenberg Traurig, LLP.

This is a good report. Go read it.

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The Senate has voted 47-53 to reject a resolution introduced by Sen. Lisa Murkowski  (S.J. Res. 26) to block EPA regulation of greenhouse gases.  Every Senate Republican, and six Democrats, supported the Resolution, which would have effectively killed EPA's efforts to promulgate and implement its new GHG regulations.  The Obama Administration, supported by environmentalists and business who stand to profit from carbon trading and carbon controls, lobbied hard to defeat the Resolution to preserve EPA's power and support its aggressive regulatory agenda and to increase the pressure on Congress to pass a cap and trade bill. 

You should expect to see the following: (1) The EPA's aggressive regulations will be a major campaign issue during the upcoming Congressional elections.  The opponents' ad message may likely be  "unelected bureaucrats are killing jobs and crippling the economy without improving the environment".  (2) More pressure from the Administration on one or two wavering Republicans to break a potential filibuster and thus to pass cap and trade.  The message will be cap and trade, plus the other incentives in Kerry-Lieberman, are the last best chance "to save the economy from EPA."   

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Stewart Brand is one of the founders and intellectual leading lights of modern environmentalism.   In October 2009, he published a book titled Whole Earth Discipline: An Ecopragmatist Manifesto.  To the shock and dismay of some long-time allies, it turns out that forty years in the environmental policy business have led Brand to favor nuclear power and oppose using the Precautionary Principle to make government policy.  As Peter Huber puts it in a thoughtful City Journal review:

The man who founded and then edited the Whole Earth Catalog for 16 years—a magazine guided by “biological understanding” and enamored with the planet-saving power of organic farming, solar, wind, insulation, bicycles, and handmade houses—now concludes: “Cities are Green. Nuclear energy is Green. Genetic engineering is Green.”

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A “cross-examination” of global warming science conducted by Jason Scott Johnston, Professor and Director of the Program on Law, Environment and Economy at the University of Pennsylvania Law School concludes that virtually every claim advanced by global warming proponents fail to stand up to scrutiny.  He summarizes his findings as follows:

Insofar as establishment climate science has glossed over and minimized such fundamental questions and uncertainties in climate science, it has created widespread misimpressions that have serious consequences for optimal policy design. Such misimpressions uniformly tend to support the case for rapid and costly decarbonization of the American economy, yet they characterize the work of even the most rigorous legal scholars. A more balanced and nuanced view of the existing state of climate science supports much more gradual and easily reversible policies regarding greenhouse gas emission reduction, and also urges a redirection in public funding of climate science away from the continued subsidization of refinements of computer models and toward increased spending on the development of standardized observational datasets against which existing climate models can be tested.

The full report is here. Expect Johnston’s analysis to resurface in the litigation against the EPA’s endangerment determination and to be used to counter the narrative behind the Kerry-Lieberman/Waxman-Markey legislative initiatives.

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This report sheds light on EPA's current thinking regarding the environmental risks associated with natural gas extraction in the Marcellus Shale, described by EPA as "the most expansive shale gas play in the U.S."   EPA's primary concerns seem to be disposal of the wastewater from hydraulic fracturing used to extract natural gas and disposal of potentially radioactive waste generated during the extraction process.  According to EPA,  "shales contain naturally occurring radioactive material (NORM)...The Marcellus Shale is considered to have elevated levels of  NORM."

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The justification for cap and trade, centerpiece of both Waxman-Markey and the American Power Act, is that placing a price on carbon emissions makes solar, wind, and other sources of alternative energy cost-competitive with fossil fuels.   However, as James Kanter of the New York Times reports, the EU's experience with carbon trading suggests that carbon must be priced at approximately $76 per ton to make alternative energy economically viable.  He writes:

Each permit, representing a ton of carbon, currently costs around $19, but most experts agree that permits need to cost around four times as much to make them cost-effective enough to build cleaner systems, like offshore wind farms and solar power plants.

To minimize economic dislocation, Waxman-Markey prices carbon emissions using a "soft collar" of $28 per ton going to 60% above three-year-average market price.   The American Power Act prices carbon emissions using a  “hard” collar between $12 and $25 per ton, floor increases at 3%+CPI, ceiling at 5%+CPI, plus permit reserve auctions.   Yet, if Kanter's reporting is correct, then neither Bill prices carbon anywhere near the level needed to make solar and wind cost-competitive.  The result?  The worst of both worlds, it seems.  Big economic pain without any environmental gain.  

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The EPA has just issued a Federal Register notice stating it will deny Confidential Business Information (CBI) claims for the identity of chemicals in health and safety studies filed under the Toxic Substances Control Act (TSCA), unless the chemical identity explicitly contains “process information” or discloses “mixture information.”  This follows on EPA's January announcement that it will generally deny confidentiality claims for the chemical identity in TSCA Section 8(e) reporting for chemicals already listed on the public portion of the TSCA Inventory.  

EPA's actions to limit TSCA CBI protection are consistent with the agency's stated policy of pushing TSCA authorities beyond traditional limits. The agency's legal justification for this action is thin.  However, the policy goal is clear: "EPA believes these actions will make more health and safety information available to the public and support an important mission of the Agency to promote public understanding of the potential risks posed by chemical substances in commerce."

The Notice may be found at 75 Fed. Reg. 29755.

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"Climate change" legislation such as the Kerry-Lieberman Bill can be passed only if the base alliance between environmental activists (through their amen corner of politicians), invested scientists, and credulous media holds firm.  However, this Newsweek article, titled "Uncertain Science", suggests that the media may be cracking.

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